0120110065
03-09-2012
Clement Truss, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Clement Truss,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110065
Hearing No. 420-2009-00074X
Agency No. ARANAD08FEB00676
DECISION
Complainant timely filed an appeal from the Agency’s August 9, 2010,
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. The Commission accepts the appeal pursuant to 29 C.F.R. §�
�1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge
(AJ) properly issued a decision without a hearing; and (2) whether
Complainant established that he was subjected to discrimination and
harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Motor Vehicle Operator, WL-5703-08, at the Agency’s Anniston
Munitions Center in Anniston, Alabama. Report of Investigation (ROI),
at 1-2. On February 4, 2007, Complainant was promoted to Motor Vehicle
Operator Supervisor, WS-5703-10 (Division Chief). Id. at 2. The promotion
was subject to the completion of a one-year supervisory probationary
period beginning on February 4, 2007. Id. As Motor Vehicle Operator
Supervisor, Complainant was responsible for the Munitions Storage
Division. Id. Complainant was responsible for the receipt, storage,
care, and preservation of stock in storage, and the shipment of depot
munitions missiles and bombs with respect to Building 380. Investigative
File (IF), at 4.
Every two years the Agency’s JMC conducts inspections to assess
the shipping, receiving, and maintenance of munitions. ROI at 12.
From April 30 to May 3, 2007, the Agency’s Joint Munitions Command
(JMC) conducted a Supply Depot Assessment inspection of Building
380. Id., at 5. The inspection reportedly revealed that employees under
Complainant’s supervision were taking more than 30 days to store
munitions after receipt, which did not meet the Agency’s seven-day
storage policy. IF, at 54A. As a result, Complainant’s division
received the negative “amber” rating in the receipt and storage
processes of munitions. Id. A positive inspection would have resulted in
a “green” rating. Id. at 57F. On July 9, 2007, Complainant received
an interim performance evaluation from his second level supervisor (S2)
(Caucasian). Id. at 54A. The evaluation noted that Complainant’s
division received an amber rating in the receipt and storage processes
of munitions during the Supply Depot Assessment inspection. Id.
On July 25, 2007, S1 (African-American) became Complainant’s first
level supervisor. ROI, at 6. Thereafter, S1 made the decision to deny
Complainant the opportunity to attend supervisory training from August
20-24, 2007. Id. at 9. Thereafter, on August 29, 2007, an Agency auditor
issued a Corrective Action Request for Complainant’s division. Id. at
57B. The auditor indentified non-conformances pertaining to the storage
of munitions and recommended corrective action. Id. The auditor noted
that Dock 27 contained containers of missiles and bombs that were
not appropriately stored. Id. As a result, on September 4, 2007, S2
issued Complainant a memorandum, noting that Dock 27 must be cleared
of the identified missiles and bombs by close of business September 8,
2007. Id. at 57E.
The next day, on September 5, 2007, S2 issued Complainant another
memorandum, noting that the Agency’s JMC would returning on September
10, 2007, for a follow-up inspection to determine if Complainant’s
division had made necessary improvements to allow for an upgrade from
amber to green status. Id. at 57F. However, the Agency’s JMC reportedly
did not recommend an upgrade to green status due to an observed lack of
accountably of for munitions in Complainant’s division. ROI, at 7-8.
After the JMC’s follow-up inspection, S2 issued Complainant a September
14, 2007, memorandum. The memorandum noted, among other things, that:
A follow up inspection by the same team of inspectors from Joint
Munitions Command conducted a Supply Depot Assessment as prescribed
by the Commander of Joint Munitions Command . . . highlighted the same
processing deficiencies, lack of accountability of munitions and the poor
attitude of some, not all, employees working at building 380. . . . The
inspection team reportedly left there frustrated because little had
changed at building 380 since their visit in April/May 2007. . . . There
was no accountability or paperwork to show where the munitions or missiles
had been transferred to.
IF, at 57K.
On September 20, 2007, S2 issued Complainant a Letter of Reprimand
regarding his leadership, accountability of munitions, and the receipt
process at building 380. Id. at 57N. On November 19, 2007, S2 issued
two Letters of Concern to Complainant regarding leadership and employee
safety. Id. at 57T, 58.
On December 3, 2007, S2 authorized a Request for Personnel Action to
lower Complainant’s grade from Motor Vehicle Operator Supervisor,
WS-5703-10, to Motor Vehicle Operator Leader, WL-5703-08, for failure
to satisfactorily complete the supervisory probationary period. ROI,
at 3. On December 26, 2007, S1 rated Complainant “unsuccessful” for
his annual appraisal for the period covering July 1, 2007, to October
31, 2007. Id. Subsequently, on January 10, 2008, S2 issued Complainant
a final memorandum, informing Complainant that he was being demoted to
his former position of Motor Vehicle Operator, WG-5703-08, due to not
demonstrating supervisory qualifications. IF, at 66-67.
On April 30, 2008, Complainant filed an EEO complaint alleging that the
Agency subjected him to discriminatory harassment on the bases of race
(African-American) and reprisal for prior protected EEO activity when:
1. on January 22, 2008, he was removed from the position of Motor Vehicle
Supervisor, WS-5703-10;
2. on December 26, 2007, S1 rated his performance without being his
supervisor for more than three months;
3. management conducted an inspection of his building with full knowledge
that he was understaffed;
4. he was denied the opportunity to attend career development training;
and
5. he was required to conduct a 100 percent inventory of his building
prior to each 7:45 a.m. meeting, while no other manager was required to
do so.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s April 23, 2009, motion for
a decision without a hearing and issued a decision without a hearing on
July 30, 2010, in the Agency’s favor. The Agency subsequently issued
a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
Specifically, the AJ noted that Complainant failed to establish a prima
facie case of hostile work environment harassment based on race and
reprisal. The AJ noted that Complainant presented no evidence that the
Agency’s conduct was motivated by discriminatory animus based on his
race or prior EEO activity. The AJ also noted that Complainant failed
to establish that management’s actions were so severe and pervasive
that they created a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ incorrectly found that
no further development of the record was necessary. In particular,
Complainant contends that although he later submitted an affidavit,
he was deprived of the opportunity to participate in the investigative
fact-finding conference. Complainant contends that he lost the ability
to examine management witnesses and answer follow-up questions from
the investigator.
Complainant also contends that the Agency’s explanations for it actions
are unworthy of credence. Specifically, Complainant contends that he was
required to do a 100 percent inventory of his building prior to each
7:45 a.m. meeting, while no other Division Chief was required to do
so. Complainant specifically names two Division Chiefs who maintained
munitions for long periods of time, but were not required to perform a
100 percent inventory each morning as he was. Complainant also contends
that the AJ’s factual finding that his division was not tremendously
understaffed was improper. In this regard, Complaint contends that the
AJ only relied on the testimony of management witnesses and ignored his
testimony. Complainant contends that the “amber” rating given to
his division after the May 2007 inspection was corrected. Complainant
contends that the September 2007 inspection by the JMC was not related to
the previous May 2007 inspection. Complainant contends that the Agency
improperly denied him the opportunity to attend a supervisory course
even though other employees received supervisory training. Complainant
contends that S1 was not qualified to rate him for his annual performance
rating because S1 had not supervised him for 120 days by the end of the
rating period, as required under Agency policy.
Complainant further contends that the AJ ignored record evidence
contradicting several allegations raised in S2’s January 10,
2008, notice of demotion to Complainant. In this regard, Complainant
contends that he completed tasks with the same professionalism as other
Division Chiefs. Complainant contends that S2’s statement that he
failed to discipline an employee for a July 14, 2007, accident was not
correct. Complainant also contends that he had not completed performance
standards for 10 employees by September 11, 2007, because he had a very
heavy workload with no secretary. As such, Complainant contends that the
AJ did not assume the truth of Complainant’s testimony and draw all
inferences in his favor. Lastly, Complainant contends that his alleged
incidents were sufficiently severe and pervasive enough to rise to the
level of a hostile work environment.
In response to Complainant’s appeal, the Agency requests that we
affirm the AJ’s decision. In particular, the Agency asserts that a
fellow Division Chief (African-American) testified that Complainant was
required to do inventory because he was not getting munitions out of his
building and into storage within the proper amount of time. The Agency
asserts that this fellow Division Chief testified that Complainant never
mentioned to him that he was being subjected to harassment, and testified
that he had no reason to believe that Complainant was being subjected
to discrimination. The Agency asserts that Complainant was removed from
the Division Chief position because he did not have a “good handle”
on the accountability of munitions being processed through building
380. The Agency also asserts that Complainant did not complete annual
performance ratings for his employees. The Agency asserts that it was
S2’s decision to demote Complainant from the Division Chief position
after he received guidance from S1 and human resources.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the Agency's final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on
an appeal from an Agency's final action shall be based on a de novo
review . . .”); see also EEO Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9, § VI.B. (providing that an administrative
judge's “decision to issue a decision without a hearing pursuant to [
29C.F.R. § 1614.109(g)] will be reviewed de novo”). This essentially
means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's,
and Agency's, factual conclusions and legal analysis - including on the
ultimate fact of whether intentional discrimination occurred, and on
the legal issue of whether any federal employment discrimination statute
was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
Decision without a Hearing
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he
or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id. at 255. An issue of fact is “genuine” if the evidence is
such that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to the
Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
After a review of the record, the Commission finds that the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, Complainant was given notice of the Agency’s
motion to issue a decision without a hearing, he was given an opportunity
to respond, he was given a comprehensive statement of undisputed
facts, and he had the opportunity to engage in discovery. On appeal,
Complainant contended that although he provided an affidavit, a hearing
was necessary because he was not given the opportunity to participate
in the investigative fact-finding conference. However, we find that,
even assuming all facts in favor of Complainant, a reasonable fact-finder
could not find in Complainant's favor, as explained below. Therefore, we
find that no genuine issues of material fact or credibility exist. Under
these circumstances, we find that the AJ's issuance of a decision without
a hearing was appropriate.
Disparate Treatment (Claim 1)
Initially, we note that Complainant alleged an adverse employment action,
demotion, as part of his harassment claim. We will first analyze Claim
1 under a disparate treatment framework.
To prevail in a disparate treatment claim absent direct evidence
of discrimination, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas. 411 U.S. at 802
n.13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
We find that assuming, arguendo, that Complainant established a prima
facie case of discrimination based on race with respect to Claim 1,
the Agency articulated legitimate, nondiscriminatory reasons for
its actions. S2 noted in the January 10, 2008, demotion memorandum
to Complainant that the division under Complainant’s supervision
demonstrated a disregard for safety, a lack of document accountability,
and a general disregard for leadership. IF, at 66-68. Specifically,
S2 noted that from April 30 to May 3, 2007, the JMC’s inspection team
highlighted deficiencies in the receipt process and accountability of
munitions in the division under Complainant’s supervision. Id. S2 noted
that a follow-up inspection by the JMC in September 2007 revealed the
same deficiencies that had not been corrected. Id. S2 noted that one
employee under Complainant’s supervision was involved in a serious
accident when he tipped over a truck with a trailer, and Complainant
failed to provide recommendations to management on how to rectify the
situation. Id. S2 noted that on September 11, 2007, Complainant had not
completed performance standards for 10 employees, which made it impossible
for Complainant to give them their annual ratings. Id. S2 noted that
Complainant did not follow November 8, 2007, instructions to have all
“Hellfire” missiles on record, which was a priority to support the
joint war-fighter. Id. Lastly, S2 noted that in June 2007, Complainant
received a referral list for the hiring of a Material Handler Supervisor,
but did not make a hiring decision until November 12, 2007. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the
burden of proving by a preponderance of the evidence that the Agency's
articulated reasons were a pretext for discrimination. Complainant can
do this by showing that the Agency's preferred explanation is unworthy
of credence. Burdine, 450 U.S. at 256. In an attempt to show pretext,
Complainant contends that S2 was the responsible management official
with regard to all claims alleged. Complainant contends that S2 was
responsible for his division being understaffed, requiring him to do
a 100 percent inventory of his building, and denying him supervisory
training. Complainant also contends that the “amber” rating given to
his organization after the May 2007 inspection was corrected. Complainant
further contends that S1 was not qualified to rate him for his annual
performance rating, which should have been done by S2.
Notwithstanding Complainant’s contentions, the record reflects
that S2 was not responsible for ordering the May and September 2007
inspections of Complainant’s division. Rather, the Agency’s JMC
ordered and conducted the inspections in accordance with Agency policy,
which required such an inspection every two years. There is no dispute
that the JMC, not S2, gave Complainant’s division an amber rating due
an observed lack of accountably to account for munitions, which included
bombs and missiles. The record also reflects that S2 was not responsible
for the Corrective Action Request issued by an auditor on August 29, 2007,
indentifying non-conformances pertaining to the storage of munitions of
Complainant’s division. Complainant also does not dispute that he had
not completed performance standards for 10 employees.
Further, the record does not reflect that it was S2’s decision to deny
Complainant training. Rather, S1 testified that he made the determination
not to allow Complainant to attend training from August 20 through 24,
2007. ROI, at 9. S1 stated, however, that he did not refuse Complainant
training, but postponed the training on account of mission requirements
at that time. S1 also testified that Complainant was required to do
a 100 percent inventory because Complainant’s division had not been
placing munitions in storage in a timely manner. Id. at 9. We further
note that there is no evidence that any understaffing of Complainant’s
division was intentional or motivated by discrimination based on race
or reprisal. Lastly, we note that Complainant testified that he felt S2
primarily subjected to him to the alleged actions above because he failed
to terminate another employee as S2 instructed and not because of his
protected EEO activity. Id. at 4. Therefore, we find that Complainant
has failed to establish that the Agency’s reasons were pretext for
discrimination or motivated based on his race or in reprisal for prior
protected EEO activity.
Harassment (Claims 1-5)
To establish a claim of harassment Complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on his statutorily protected classes; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must
have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We
concur with the AJ in finding that management's actions, even if true,
were simply not sufficiently severe or pervasive enough to have altered
the conditions of Complainant's employment or to have created an abusive
working environment. We also concur with the AJ that Complainant failed
to establish that the Agency’s actions were motivated by his race or
prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order adopting the AJ’s decision.
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
March 9, 2012
Date
2
0120110065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110065