0120111971
05-09-2013
Charleston C. Iwuagwu, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Charleston C. Iwuagwu,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120111971
Hearing No. 530-2008-00239X
Agency No. P-2006-0116
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's January 14, 2011 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as the Health Services Administrator, GS-0670-13, at the Agency's Federal Correctional Institution in Fort Dix, New Jersey. According to the position description, the Health Services Administrator "serves as an advisor to the administration regarding overall administrative management and operation of health services and provides advice and recommendations regarding medical programming in consultation with the medical providers."
Complainant's First Level Supervisor was the Associate Warden (S1 - Hispanic, United States, female, White, 47). On March 11, 2006, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and hostile work environment harassment on the bases of race (African-American), national origin (Nigerian), sex (male), color (Black), age (45), and reprisal for prior protected EEO activity from November 2005 to January 2006 when:
1. On November 4, 2005, while he was on a one-day temporary duty assignment, S1 directed his subordinate to override his decision to change an employee's start time from 8:00 a.m. to 7:30 a.m.;
2. On November 14, 2005, S1 directed him to change a subordinate's performance log entries and advised him that he must not hold the subordinate responsible for shortcomings in the department;
3. During a December 7, 2005 meeting with union officials about the hiring of a Health Systems Specialist, S1 "stopped [him] cold" and stated the following: she did not bring him to the meeting, he was not at the meeting to make a statement because he was not talking for management, and the union could talk to him but not at the meeting;
4. On January 24, 2006, S1 gave him quarterly performance log entries that were lower than he had received in the past;
5. On unspecified dates, S1 did not delegate him to act for her in her absence;
6. On an unspecified date, S1 told him that his subordinates were coming to her because of his poor leadership.
After an October 7, 2010 hearing, an EEOC Administrative Judge (AJ) issued a decision concluding that Complainant failed to prove that the Agency discriminated against him as alleged. In finding no discrimination, the AJ found that Complainant did not prove, by a preponderance of the evidence, that S1's explanations for her actions were a pretext for race, national origin, sex, color, age, or reprisal discrimination. Moreover, the AJ found that Complainant failed to establish a claim of harassment because he did not show that any of the actions complained of were based on his protected classes. Instead, the AJ found that this was simply a case of a poor employee-employer working relationship.
Regarding incident 1, the AJ relied on S1's testimony that Complainant failed to follow the proper procedure of notifying the employee in writing that he was creating a change in working conditions by altering her work schedule. In addition, the AJ relied on S1's testimony that Complainant failed to give the employee enough time to make other child care arrangements. Regarding incident 2, the AJ relied on S1's testimony that she told Complainant to change the subordinate's performance log because Complainant was holding the subordinate accountable for something that was not in the scope of the subordinate's duties. Regarding incident 3, the AJ relied on S1's testimony that, at the meeting between management and union, Complainant "threw the [selecting official] under the bus" when he stated that the selectee was not the best qualified candidate and openly verbalized his discontent with the decision that the selecting official had made. Regarding incident 4, the AJ relied on S1's testimony that Complainant was driven but did not always follow policy. Regarding incident 5, the AJ noted Complainant's testimony that S1 always delegated one of three Caucasian females to act for her in her absence. The AJ, however, did not find that S1's reasons for doing so were based on Complainant's protected classes; the AJ noted Complainant's testimony that S1 told him she would not delegate him to act in her absence because he was so busy with Health Services. Regarding incident 6, the AJ relied on S1's testimony that employees would come to her to complain about Complainant and his failure to effectively communicate with the staff. In addition, the AJ relied on S1's testimony that the Clinical Director had talked to her several times about the communication in the department and the way it was being led.
Regarding S1's testimony, the AJ explicitly found that she was a credible witness based on her demeanor at the hearing. Specifically, the AJ explained that S1 "appears to be a tough supervisor; she does not mince words with employees." In addition, the AJ determined that S1, in her hearing testimony, "was essentially personalizing that and showing that she is a tough manager." Further, the AJ noted that S1's hearing testimony corroborated her prior affidavit testimony.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B. (Nov. 9, 1999).
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See EEO MD-110, Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence"). Here, Complainant did not submit a statement or brief in support of his appeal.
After a careful review of the record, we find that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. As explained above, the AJ found that Complainant failed to present sufficient credible evidence that any of the Agency's actions were based on his race, national origin, sex, color, age, or prior EEO activity. We discern no basis to disturb the AJ's decision. Therefore, after a review of the record in its entirety, it is the decision of the Commission to AFFIRM the Agency's final order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_5/9/13_________________
Date
2
0120111971
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111971