0120110605
07-31-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110605
Hearing No. 420-2009-00197-X
Agency No. ARTAQCOM08MAR01187
DECISION
On October 29, 2010, Complainant filed an appeal from the Agency's September 22, 2010, 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, finding that Complainant failed to establish that the Agency subjected him to harassment and a hostile work environment, and discriminated against him on the bases of race (Caucasian), sex (male) and in reprisal for prior EEO activity through the occurrence of twenty-four (24) incidents taking place between August 29, 2007 and December 9, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director of Emergency Services at the Agency's Anniston Army Depot facility in Anniston, Alabama. As outlined in the EEOC Administrative Judge's decision dated August 31, 2010, on April 13, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), and sex (male), when between September 9, 2007 and February 22, 2008, in twelve separate incidents, he was harassed and subjected a hostile work environment. On October 3, 2008, Complainant amended his complaint to include the claim that the Agency discriminated against him on the bases of race (Caucasian), sex (male) and in reprisal for prior protected EEO activity under Title VII when between August 29, 2007 and August 22, 2008, in eleven separate incidents he was harassed and subjected a hostile work environment. On January 8, 2009, Complainant further amended his complaint to include the claim that he continued to be subjected to a hostile work environment under the same bases when on December 9, 2008, he was issued another written admonishment.
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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on August 31, 2010. 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.
The AJ held that the available evidence did not support Complainant's allegations of discrimination. Specifically, Complainant failed to establish that he was aggrieved as a result of any of the enumerated incidents because he was unable to show that he suffered any harm for which there was a remedy. The AJ reasoned that Complainant did not prove that there was any continuing effect on him as a result of any written admonishment issued by the Agency. With respect to Complainant's harassment claims, the AJ found that he was unable to establish that any of the alleged discriminatory incidents were based on discriminatory animus against him because of his protected status. Additionally, the AJ held that Complainant failed to establish that the alleged discriminatory incidents were so severe or pervasive that they created a hostile work environment. Regarding the amended claims on the basis of reprisal for prior EEO activity, the AJ held that while Complainant did engage in protected activity by filing the instant complaint, the evidence did not establish that he was subjected to any adverse action as a result.
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 Chapter 9, � VI.B. (November 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 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 Chapter 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").
ANALYSIS AND FINDINGS
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 Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. 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 review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the AJ's intent to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Harassment/Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).
Complainant asserted that management continuously subjected him to a hostile work environment because of his race and sex, and in retaliation for filing the complaint at issue in this appeal. Upon review of the record, we find that Complainant has not shown that he was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that could have been adverse to him; however, he has failed to show that he was subjected to conduct that was sufficiently severe or pervasive enough to establish that a hostile work environment occurred. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. We find that most of the incidents presented to support Complainant's harassment claim are not "unwelcome verbal or physical conduct," but rather involved workplace interactions which often include the expression of professional disagreements, different work styles, and personality conflicts. See Day-Hill v. Dep't of Justice, EEOC Appeal No. 0120101307 (Aug. 28, 2012). Simply put, Complainant has not put forth any persuasive evidence which suggests that his race, sex, or prior EEO activity were considered with regard to any of these incidents. We find that all the incidents complained of were work-related interactions where management was appropriately discharging its oversight responsibilities.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
We find that even if we assume arguendo that Complainant established a prima facie case of discrimination based on race, sex, and to the extent the Complainant alleges that he was subjected to disparate treatment in retaliation for his filing the instant complaint, the Agency articulated legitimate, nondiscriminatory reasons for all the alleged discriminatory actions, which Complainant failed to establish pretext. Additionally, Complainant failed to provide any evidence that employees without prior EEO activity were treated differently than him under similar circumstances. There is nothing in the record that demonstrates that the Agency's reasons are not worthy of credence.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate he was subject to discrimination as alleged; the Agency's final order adopting this decision therefore 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
___7/31/14_______________
Date
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0120110605
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110605