0120130374
03-17-2015
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130374
Hearing No. 451-2012-00018X
Agency No. 7A0J11019
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 1, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Recreation Aide at the Agency's Outdoor Recreation, 502 Force Support Squadron, Community Services Flight at Fort Sam Houston, Texas.
On July 11, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race (African-American), age (over 40), and in reprisal for prior EEO activity when:
a. on or about April 1, 2011, his first-line supervisor told co-workers not to talk to Complainant because he is a "killer," and on March 31, 2011, the supervisor verbally threatened Complainant by telling him "I will break you;"
b. on April 14, 2011, he received a Notification of Placement on Administrative Leave memorandum signed by the Operations manager; and
c. on April 20, 2011, he was charged with assault by threat, based on a complaint by the Operations Manager, and he was detained and questioned by the 502nd Security Forces Squadron; and
d. from March 27, 2011 to July 11, 2011, he did not receive a raise.
After an investigation into his allegations, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 21, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In regard to claim a, the AJ found that Complainant produced no evidence to support his claim that his supervisor told his co-workers not to talk to him because he is a "killer." The AJ noted that the supervisor denied it and Complainant's co-worker stated that she and others "were just told not to have any communication with [Complainant]...I never heard anybody call him a killer." With respect to Complainant's claim that his supervisor told him "I will break you," the supervisor admitted he stated, "I will break you of this," by which he said meant show him his management style, and how he wanted to run the facility.
Regarding claim b, there is no dispute that Complainant was placed on administrative leave by the Operations manager. The Operations Manager stated that the decision to place Complainant on administrative leave was based on disturbing statements that Complainant made about bringing a gun to work. The AJ noted that the supervisor stated that he had previously referred Complainant to a counselor and the counselor reported the disturbing statements to management. The AJ found that Complainant did not deny making these statements.
Regarding claim c, there is no dispute that, after being placed on administrative leave, Complainant was questioned by Security Forces. The Operations Manager testified that Complainant came to work to get some paperwork signed and spoke to the Manager, voiced his frustrations with his situation and compared himself to a boxer, stating he felt backed into a corner and need to strike out. The Manager documented the incident and the matter was referred to Security Forces, who investigated the incident. A report of this investigation is in the record. The Manager stated that, based on the report, upper level management, security and human resources made the decision to charge Complainant with "assault by threat." The record continues no evidence that Complainant was disciplined as a result of the charge.
Regarding claim d, the AJ noted that according to the supervisor, he stated that Complainant did not get a raise because he was not entitled to one at the time. The AJ further noted that the record established that none of Complainant's co-workers received a raise during the relevant period because there was a pay freeze.
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of race, age and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination. The AJ further concluded that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
After careful review, we find that the record was adequately developed during the investigation. On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, age, and prior protected activity. We discern no basis to disturb the AJ's decision.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.1
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 17, 2015
__________________
Date
1 On September 16, 2011, the Agency issued a partial dismissal. Therein, the Agency dismissed six other claims on various procedural grounds: raising the same claim previously raised with the Agency; failure to state a claim; and untimely EEO Counselor contact. We acknowledge that Complainant addresses several claims on appeal that were the subject of the partial dismissal on the grounds that they were previously raised. However, we note that Complainant does not expressly challenge the Agency's partial dismissal. Therefore, we have not addressed these matters in our decision.
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0120130374
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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