0120131733
07-16-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120131733
Hearing No. 420-2012-00139X
Agency No. DECA-00215-2011
DECISION
On March 22, 2013, Complainant filed an appeal from the Agency's March 5, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Commissary Contractor Monitor at the Agency's facility in Fort Lee, Virginia.
On July 9, 2011 and October 9, 2011, Complainant filed his EEO complaints alleging that the Agency discriminated against him on the bases of race (Black), sex (male), religion (Orthodox Christian Greek), color (Black), disability, age (58), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; and Section 501 of the Rehabilitation Act of 1973 when he was subjected to harassment. In support of his claim, Complainant alleged that the following events occurred:
1. On or about June 8, 2011, Complainant was harassed and believed that his safety was threatened when his supervisor (Supervisor) requested to speak with him in his office;
2. On July 21, 2011, Complainant received a "Fully Successful" performance rating and received a four-hour time-off award.
3. On July 28, 2011, Complainant was presented with a Letter of Reprimand.
4. Issues developed due to his timesheet.
5. On November 29, 2011, he received an email from the Supervisor asking what rating inspection he gave the contractor for the Meat Department and bathroom for November 26, 2011.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for Summary Judgment on August 9, 2012. Complainant responded with his Summary of Facts on August 11, 2012.
The AJ assigned to the case determined that the complaint did not warrant a hearing and issued a decision without a hearing on September 4, 2012. The AJ found that Complainant failed to establish a prima facie case of disparate treatment or hostile work environment. The AJ determined that Complainant failed to provide any evidence to establish that the workplace was so permeated with discriminatory intimidation which could be attributed to his protected bases.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i). Subsequently, the Agency issued its final action on March 5, 2013, implementing the AJ's decision. This appeal followed without comment.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
Complainant alleged that he was subjected to disparate treatment when he was rated "fully successful," given a time-off award and a issued a Letter of Reprimand. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. The record indicated that Complainant is responsible for observing the performance of the contractor within the Meat Department and reviewing the contractor's work performance within the facility. As to event (3), the record indicated that Complainant was the Quality Assurance Monitor and, as part of his duties that night, he signed an inspection report indicating that the contract cleaner had cleaned the meat department on May 16, 2011. On May 17, 2011, the Supervisor came into the meat department and found that it was in disarray and needed to be re-cleaned. Based on Complainant's false statement regarding the meat department on May 16, 2011, the Supervisor issued the Letter of Reprimand. As for event (2), the Supervisor found Complainant's work performance met his expectations. The Store Director indicated that those who received a "Fully Successful" rating received a four hour time off award. Finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we turn to Complainant to show that the Agency's reasons were pretext. Upon review, we find that Complainant failed to do so. Therefore, we conclude that the AJ properly held that Complainant did not show that he was subjected to disparate treatment.
Harassment
Complainant also alleged that events (1) - (5) constituted a claim of harassment. It is well-settled that harassment based on an individual's race, sex, color, religion, age, disability and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on his protected classes and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
For the purposes of analysis, we again assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that Complainant failed to show that the alleged events occurred because of his protected bases. As to event (1), Complainant alleged that he felt threatened. The Supervisor averred that he called Complainant into his office in order to provide Complainant with a "Certificate of Appreciation" and to discuss a concern with the condition of the Meat Department on the previous night. Complainant called to have the Military Police at the meeting. As s result, the Supervisor canceled the meeting and left the building. Events (2) and (3) were discussed above. As to event (4), the Supervisor denied Complainant's claim that there were issues with his timesheet in November 2011. On November 29, 2011, the Supervisor sent Complainant an email message regarding his rating of the contractors for the meat department and the bathrooms on November 26, 2011. The Supervisor wanted to get Complainant's rational for his satisfactory rating on that date because he found that the meat department and bathrooms had not been cleaned properly and had to be re-cleaned. Complainant argued that he was treated differently than his female, white co-worker. Beyond his assertions, Complainant has not provided any evidence to support his claim that the alleged events occurred because of his protected bases and/or prior EEO activity. Therefore, we find that the AJ correctly determined that Complainant failed to show that he was subjected to harassment based on his race, color, sex, age, religion, disability and/or prior EEO 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
July 16, 2015
__________________
Date
2
0120131733
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131733