0120122782
09-04-2014
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120122782
Hearing No. 470-2011-00167X
Agency No. HS-ICE-18143-2010
DECISION
Complainant timely filed an appeal from the Agency's June 5, 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 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 whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that that Complainant failed to prove that he was subjected to unlawful discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11 Special Agent in the Agency's Immigration and Customs Enforcement (ICE) facility in Detroit, Michigan. Complainant has worked for ICE since January 2008. Complainant's first-level supervisor (S1) (Caucasian) is the Group Supervisor for the National Security Group (Group) in which Complainant serves. S1 is responsible for nominating employees within his Group for Special Achievement Awards. According to a July 2010 memorandum issued by the Executive Associate Director, Special Achievement Awards are given in recognition of employees' "one-time, non-recurring contributions or accomplishments."
In July or August 2010, S1 nominated eight of employees from his Group for a Special Achievement Award, but Complainant was not nominated. The eight nominated employees, all Caucasian, ultimately received a Special Achievement Award, and Complainant did not receive a Special Achievement Award for fiscal year 2010.
On November 8, 2010, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race/color (African-American) and in reprisal for previous EEO activity when, on September 24, 2010, the Agency did not issue him an award.
The AJ's Decision
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. On January 5, 2012, Complainant withdrew his reprisal claim during a pre-hearing conference. On October 14, 2011, the Agency moved for a decision without a hearing in its favor, to which Complainant objected. On May 1, 2012, the AJ issued a decision without a hearing in favor of the Agency. Specifically, the AJ found that the Agency articulated legitimate, non-discriminatory reasons for its actions, and that Complainant did not provide any persuasive evidence that the Agency's reasons were pretext for unlawful discrimination. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he and an Asian co-worker were the only people in the Group that did not receive the Special Achievement Award during the relevant time period. Complainant contends that he should have received an award because in November 2009, he was the onsite team leader at a location where illegal aliens were found to be in possession of multiple firearms. Complainant notes that S1 contended that one of the recipients of a Special Achievement Award (C1) deserved the award because of his work on the firearm case, yet Complainant did not receive an award although he was the team leader on the case. The Agency does not raise any arguments on appeal.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 the 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").
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). 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 careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing. A decision without a hearing therefore was appropriate.
Disparate Treatment
In order to prevail in a disparate treatment claim such as this case, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish 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 Construction 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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of analysis, and without so finding, we assume that Complainant established a prima facie case of discrimination. Nonetheless, the Commission finds that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, S1 stated that Complainant did not receive a Special Achievement Award during the relevant time period because he did not have a special act accomplishment that went "above and beyond" his normal job duties. S1 stated that, except for one of his employees (C2), all the Special Agents he nominated had participated in the Christmas 2009 Northwest Airlines attempted bombing incident. However, S1 stated that Complainant performed at a high level in the normal course of his duties. S1 further stated that he nominated C2 for the Award because he had conducted a very significant source recruiting operation with the Intelligence Community, and the recruitment would not have been successful without C2's participation.
The record reveals that, in contrast to seven of the eight Group recipients of the Special Achievement Award, Complainant did not respond to the Christmas 2009 incident; Complainant was on annual leave at that time. Moreover, in contrast to the eighth recipient of the Special Achievement Award, Complainant was not involved with the Intelligence Community significant recruiting operation.
Complainant contends that he should have received an award because in November 2009, he was the onsite team leader at a location where illegal aliens were found to be in possession of multiple firearms. Complainant also contends that S1 cited C1's involvement with the firearm case as a basis for C1 to receive a Special Achievement Award, although Complainant was the team leader for that case. However, C1 responded to the Christmas 2009 attempted bombing incident, whereas Complainant did not. Report of Investigation (ROI), Exhibit 7, p. 7. Therefore, C1 and Complainant are not similarly situated in this matter. Regarding the Asian coworker Complainant claims also did not receive a Special Achievement Award, the record reveals that, like Complainant, she did not participate in the Christmas 2009 attempted bombing incident. ROI, Exhibit 8, p. 8.
Complainant clearly disagrees with S1's judgment about what activities met the requirements for the Special Achievement Award. We note that the focus of the Commission's inquiry is on the employer's motivation, not its business judgment. See Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir. 1979). We find that Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that the Agency's explanations are pretext for unlawful disability discrimination. Thus, we find that the AJ properly found that Complainant did not prove that he was subjected to unlawful discrimination.
CONCLUSION
Accordingly, 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 for the reasons set forth in this 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
September 4, 2014
Date
2
0120122832
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122782