0120123540
05-14-2015
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. 0120123540
Hearing No. 430-2011-00338X
Agency No. DECA-00211-2010
DECISION
On September 7, 2012, Complainant filed an appeal from the Agency's August 10, 2012, 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 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 an EEO Specialist at the Agency's Equal Opportunity Directorate (EEO Office) located at Headquarters in Fort Lee, Virginia.
On November 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), and reprisal for prior protected EEO activity1 when:
1. He received a rating of "met" for the performance element of "Special Emphasis Programs" on his performance appraisal for August 9, 2010; and
2. Complainant was issued a Letter of Reprimand on August 25, 2010.
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. Complainant filed a Motion for Summary Judgment on October 17, 2011. The Agency responded to Complainant's motion on October 31, 2011. On June 14, 2012, the AJ issued a notice of intent to issue a decision without a hearing. Complainant responded to the notice. On August 2, 2012, the AJ denied Complainant's motion for a decision without a hearing in his favor and issued a decision by summary judgment in favor of the Agency.
In reaching this decision, the AJ noted that the Manager rewrote the position descriptions for Complainant and another employee (Coworker) to reflect that they were supervisors over their respective sections in November 2009. In March 2010, the Manager consulted with the Human Resources office and revised the position descriptions again for both individuals to reflect that they were "lead employment specialists" rather than supervisors. As a result, all the employees within the EEO Office reported directly to the Manager. As for claim (1), the AJ held that the Manager was the rating official while the Chief of Staff was the reviewing official. On or about May 6, 2010, Complainant and the Coworker received their performance plans for the appraisal period of October 1, 2009 to August 10, 2010. During this time, the Agency was transitioning pay systems. The Manager rated Complainant as "exceeded" for two elements and "met" for element three, namely "Special Emphasis Programs". Complainant's overall rating was "Excellent" which is the second highest rating. The AJ noted that the performance plan for element 3 included language regarding developing a plan to enhance store level observances. Complainant did not submit a plan regarding special emphasis programs. The AJ stated that the record showed that no one received an "Outstanding" rating and that Complainant received a higher rating than the Coworker and received the higher performance bonus than anyone on the Manager's staff.
As for claim 2, the AJ noted that during the week of July 12 to 16, 2010, the Manager was out of the office attending a conference and the Coworker was designated the Acting Director. While he was away, the Manager received emails from Complainant and another employee regarding a verbal altercation. Complainant also indicated that the Acting Director cursed at him. The Coworker noted that Complainant made a derogatory comment about his Hispanic heritage and words invoking age discrimination. The Manager emailed Complainant, the Coworker and the other employee instructing them to refrain from further action and to have them prepare statements upon his return. The other employee went to the Inspector General's Office to report Complainant's alleged harassment. The Manager interviewed and obtained statements from witnesses. Following the investigation, the Manager issued letters of reprimand to all three employees for "Conduct Unbecoming a Federal Employee."
In viewing the facts in a light most favorable to Complainant, the AJ found that the evidence in the record failed to demonstrate that the Agency's stated reasons for its actions were pretext for discrimination. As to claim (1), the AJ noted that Complainant merely disagreed with his performance rating. The AJ indicated that it was undisputed that Complainant did not provide a plan for special emphasis programs as indicated in element 3, although he provided excuses for not having a plan. However, the AJ determined that Complainant failed to demonstrate that his rating was based on his protected bases and/or prior EEO activity. As to claim (2), the AJ assumed that the Coworker and the other employee made negative comments towards Complainant. However, the AJ determined that Complainant failed to provide any evidence the Letters of Reprimand issued to all three employees was based Complainant's protected bases and/or his prior EEO activity. The AJ found that the record clearly demonstrated that there was a dispute between the three employees and the Manager treated all three in the same manner following his investigation into the alleged events while he was out of the office. The AJ concluded that there was simply no evidence of discrimination and/or retaliation with respect to claim (2). Therefore, based on his review of the record, the AJ concluded that Complainant did not meet his burden of proving that the Agency's actions constituted unlawful discrimination and/or retaliation.
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. This appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, by letter dated September 26, 2012, the Commission's Office of Federal Operations (OFO) notified the Agency of the filing of Complainant's appeal and that it was required to submit a copy of the entire complaint file within 30 calendar days of the Agency's receipt of the letter of notification. However, the Agency failed to submit the requested complaint file, although it submitted its Brief in Opposition to the Appeal by fax dated October 11, 2012. On February 27, 2015, OFO issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed that required the Agency to submit the complete complaint file to the Commission within 30 calendar days. The Agency provided the requested complaint file, and the record is now complete.
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.
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).
Upon review of the record, we find that the responsible management officials provided legitimate, nondiscriminatory reasons for the disputed actions. As to claim (1), the AJ correctly held that the Manager provided reasons for rating Complainant "met" with respect to element 3 noting that it was undisputed that Complainant failed to develop plans to enhance the Special Emphasis programs, as detailed in his performance plan. As to claim (2) and the Letter of Reprimand, the AJ properly found that the Manager issued the same reprimand to all three employees engaged in the altercation that transpired while the Manager was away from the office.
Finding that the Agency has articulated legitimate, nondiscriminatory reasons for its actions, we turn to Complainant to establish that the Agency's reasons were pretext for unlawful discrimination and/or retaliation. Upon review, we find that the AJ correctly held that Complainant failed to meet his burden. Therefore, we conclude that the AJ properly issued his decision finding in favor of the Agency.
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 decision implementing the AJ's decision without a hearing finding no discrimination.
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
May 14, 2015
__________________
Date
1 The record indicated that Complainant engaged in a prior EEO complaint and subsequent civil action which was resolved by a settlement agreement some six years prior to the instant matter.
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0120123540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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