0120130523
03-25-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130523
Hearing No. 420-2012-00036X
Agency No. ARANAD11JAN00003
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 28, 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Manager at the Agency's Directorate of Production Management, Anniston Army Depot (ANAD) in Anniston, Alabama.
On February 8, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, sex, and reprisal (Merit Systems Protection Board claim) when:
a. on December 4, 2010, his supervisor was hostile toward him when Complainant informed her that Depot Security informed him (Complainant) that individuals working in Building 140 could not park in the slots reserved for government vehicles around the building;
b. on December 15, 2010, he received an overall performance rating of three (3) on his Senior System Civilian Evaluation Report; and
c. on January 27, 2011, he was the only employee instructed to send an e-mail to his supervisor, telling her when he got to work, when he left, and if he left the building, to let the supervisor know where he was going.
After an investigation, 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 11, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant filed a Merit Systems Protection Board (MSPB) claim in 2010 based on a reduction in grade during the time ANAD personnel were operating under the National Security Personnel System. Complainant's first level supervisor and second level supervisor were aware of Complainant's MSPB claim.
The AJ found in regard to claim a, ANAD security office issues temporary parking place cards to the Directors for employees to check out and use when they had to use their personal vehicles for business, and the employees turn in the place cards when they are done using them. The temporary place cards authorize employees to park in slots designated for government vehicles. The AJ noted that after the conversation regarding security officials advising Complainant that employees could not park around the building, his supervisor sent an email to employees advising them not to work in government slots without a place card.
In her fact finding conference testimony, the Supervisory Deputy Production Manager, also Complainant's supervisor, stated that she does not recall the December 4, 2010 incident. Specifically, the supervisor stated that she does not recall the specifics about the conversation she had with Complainant and "in fact, when [Agency official] from the EEO office asked me, I really did not even recall the conversation. After I read [Complainant's] complaint, I remembered a little bit about it, but I do not remember the specifics." The supervisor further stated that she only remembered Complainant telling her that security had notified him that there was a problem with employees parking around the building.
The Director of Production Manager, also Complainant's second level supervisor, stated that Complainant did not tell him that the supervisor was hostile towards him when he told her about employees parking around the building. The Director stated that the supervisor "was just trying to find out who had called security about our employees parking there. So she - - was going around the building and asking several people, because somebody had complained to her about security writing tickets. So, she just went out into the area to find out who might have done that."
Regarding claim b, the AJ noted that on December 15, 2010, Complainant received an overall performance rating of three (3) on his Senior System Civilian Evaluation Report for the period of October 1, 2009 to October 31, 2010. The record reflects that a rating of 1, 2 or 3 represents "successful," a rating of 4 represents "fair," and a rating of 5 represents "unsuccessful." The AJ noted that according to the supervisor, Complainant did not merit a higher rating. Specifically, the supervisor stated "for the program manager position, we expect [Complainant] to be the 'eyes and ears' for the director and deputy, [Director] and myself, and instead [Complainant] basically waits for us to give him assignments." The supervisor further stated that at the time of Complainant's interim review for NSPS, she documented that Complainant "needed to take more initiative." The supervisor stated that she was later directed by the Director to bring down Complainant's rating from "3" to "2."
The Director stated after Complainant shared his concerns about his performance rating with him, he told Complainant that he "would look at it as a rater and compare his accomplishments with the standards with [supervisor's] input and my personal observations, and I would rate him." The record reflects when ANAD transferred from National Security Personnel Security (NSPS) to Total Army Performance Evaluation System (TAPES), the NSPS objectives were transferred to TAPES and spread out from three objectives under NSPS to five objectives under TAPES to give employees a better change of obtaining an exceptional rating. Under NSPS, employees had to exceed all three objectives to obtain an exceptional rating and under TAPES, they only had to exceed four out of five objectives.
The Director stated that at that time, there was some confusion on Complainant's part concerning the objectives "even though we tried to put all that information out of NSPS employees. The guidance was you would use your current NSPS objectives. They wouldn't change. We would just transfer them from TAPES. When - - - it came time to rate him, he actually gave [Complainant] some new objectives, and so, we had to go back and clear all that up, and one of the things we didn't do when we transferred in his NSPS he had three objectives, so, you know, we spread those out among five, because that would be - - that would give the employee a better opportunity to get an exceptional...we just created five objectives where there were three, and then we had [Complainant] to address each one of those and give us his input, and then we made the evaluation."
The Director stated following their discussion concerning Complainant's overall rating, the supervisor accepted his recommendation that Complainant's rating should be moved down from a "3" to "2." The Director stated "again, there was a lot of confusion that we could have done a better job of documenting everything on TAPES..."
With respect to Complainant's allegation that a named Caucasian male employee received a rating of "1," the Director stated that the employee received a rating of "1" because he "went over and above expectations in his objectives. He operated our integrated prime vendor for all our hardware on the depot." The Director also stated while Complainant and employee were both program managers, they had different assignments.
Regarding claim c, the AJ noted that on January 20, 2011, Complainant did not report to work until 10:00 a.m. and did not call his supervisor to advise the supervisor that he would be late. On January 27, 2011, the supervisor instructed Complainant to email the secretary every day, letting the secretary know when he arrived to work, and where he was going to be if he was out of the office for a period of time so Agency management could contact him if he was needed. The AJ further noted that Complainant's office is located on the opposite side of the building from the supervisor's office, and she cannot see Complainant arrive or depart his office.
The supervisor stated that that on January 20, 2011 "about a week before I sent [Complainant] the e-mail, he did not show up for work and did not call in. He did not come to work until 10:00. We had a couple of incidents prior to then when either [secretary] or myself or [second level supervisor] would go back to look for [Complainant] and he wasn't there. His light was off, and we didn't know where he was, and then this day he did not come in at all until 10:00, and even though he may not be under the union as far as an employee required to abide by the union rules, I think he received training, as all employees do under the new union agreement, which stated that the time for calling in had changed from 10:30 to 9:30 or two hours after your normal report to work duty, which for him would have been 9:00."
Further, the supervisor stated that she could have charged Complainant with Absence Without Leave (AWOL) "but instead of carrying him AWOL I elected to put the requirement on him that he send an e-mail. Supervisors have - - all supervisors had just recently had training provided by the legal office, and [Agency official] said in the training that requiring an e-mail from an employee in another area from where the supervisor worked was acceptable, it was acceptable to require employees to provide an e-mail as opposed to having a roll call."
The supervisor stated that after Complainant objected to the new e-mail policy, the Director modified the email requirement to have Complainant tell her where he would be if he were to be out of his office for an extended period of time.
The Agency fully implemented the AJ's decision in its final order. Complainant did not make any new contentions on appeal. 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.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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).
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. On appeal, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Accordingly, we find no reason to disturb the AJ's conclusion that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, were a pretext masking discrimination.
The Agency's final order implementing the AJ's decision, finding no discrimination was proven, is AFFIRMED.
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 25, 2015
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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