0120132166
09-22-2015
Complainant v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132166
Hearing No. 430-2012-00129X
Agency No. 11-40085-02487
DECISION
Complainant timely filed an appeal from the Agency's 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: 1) whether there are genuine issues of material fact that require a hearing before an EEOC Administrative Judge (AJ); 2) whether the AJ properly found that Complainant waived his opportunity to address the Agency's partial acceptance/dismissal of his complaint; and 3) whether the AJ properly found that Complainant failed to establish a prima facie case of discrimination based on race and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Supervisor I, WS-10, assigned to the Maintenance Department in the Facilities Sustainment Branch of the Naval Facilities Engineering Command Mid-Atlantic in Norfolk, Virginia. Report of Investigation (ROI), at 139. Beginning in September 2006, Complainant filed three EEO complaints naming his second-level supervisor (S2) (Caucasian) as a responsible management official (RMO). S2 served as the Production Manager for the Agency.
On October 5, 2010, management selected a Caucasian employee for a 120-day detail to the position of Acting Maintenance Superintendent.1 Thereafter, in January/February 2011, management selected another Caucasian coworker of Complainant's (C1) to be the Acting Maintenance Superintendent for a 120-day period through June 2011. Id. at 164. According to Complainant, on May 6, 2011, and other days, he (Complainant) was never allowed to be the Acting Maintenance Superintendent. Id. at 141-44. Also according to Complainant, however, there was no public announcement or advertisement nor did he request to be the Acting Maintenance Superintendent specifically for May 6, 2011. Id. S2 averred that if someone were going to sit in as the Maintenance Superintendent for the day of May 6, 2011, it would have been filled on an informal basis, not advertised. Id. at 153.
Complainant contacted an EEO Counselor on April 21, 2011, and thereafter filed an EEO complaint on June 3, 2011, alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII when:
1. on May 6, 2011, he was not given the opportunity to act as the superintendent for the day; and
2. on February 2, 2011, he was not selected for the 120-day appointment to the Acting Maintenance Superintendent position.
On July 5, 2011, the Agency issued a letter of Partial Acceptance/Dismissal of Complainant's complaint. Therein, the Agency accepted claim 1 for investigation, but dismissed claim 2 for untimely EEO Counselor contact, and also dismissed Complainant's hostile work environment claim for failure to state a claim.
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.
On April 19, 2012, the AJ assigned to the case issued an Acknowledgement and Order, instructing the parties that they had 30 days to address and comment on the July 5, 2011, Partial Acceptance/Dismissal. Complainant did not contest the Agency's partial dismissal and did not file a motion to amend his complaint within the 30 days. Thereafter, over Complainant's objections, the AJ granted the Agency's July 12, 2012, motion for a decision without a hearing and issued a decision without a hearing in the Agency's favor on March 5, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that it subjected him to discrimination as alleged.
Specifically, the AJ found that Complainant waived his opportunity to contest the Agency's dismissal of claim 2. In particular, the AJ noted that the Agency's Partial Acceptance/Dismissal clearly instructed Complainant that he had seven days to notify the Agency if he believed the claim was not correctly identified. The AJ further noted that Complainant did not respond to his April 19, 2012, Acknowledgement and Order, which instructed the parties that they had 30 days to comment on the propriety of the dismissal. The AJ additionally indicated that Complainant did not file a motion to amend or clarify his complaint. The AJ noted that Complainant did not contest the Agency's dismissal until his response to the Agency's motion for summary judgment, and consequently waived his opportunity to challenge the framing of his complaint. The AJ also added that claim 2 nevertheless was untimely pursuant 29 C.F.R. � 1614.107(a)(2) for failure to timely contact an EEO Counselor.
The AJ additionally found, with respect to claim 1, that Complainant did not establish a prima facie case of discrimination based on race or reprisal. The AJ found no inference of discrimination or evidence of a materially adverse act. The AJ noted that undisputed evidence showed that C1 had already been selected and was serving as the Acting Maintenance Superintendent on May 6, 2011. The AJ also noted that Complainant submitted no evidence that he could or should have been sitting in for C1 that day, or that anyone outside of his protected classes was asked to do so.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he was the only African-American Supervisor in the Maintenance Department when he started working with S2, who began to treat him in a hostile manner. Complainant contends that the AJ erred in finding that his complaint solely involved the date of May 6, 2011. Complainant argues that, as he averred during the investigation, his complaint involved not being allowed to serve as temporary Maintenance Superintendent on a daily or fill-in basis for the entire period since on or before February 2, 2011. Complainant also states that he filed his instant EEO complaint on June 3, 2011, while the investigation of Agency No. DON-10-40085-03488 was ongoing. Complainant believes that his instant EEO complaint should have been consolidated with his prior EEO complaint, Agency No. DON-10-40085-03488, in order to avoid fragmentation. Complainant argues that only Caucasian employees have been given the opportunity to serve as the Maintenance Superintendent.
Complainant opines that the Agency's decision without a hearing was improper because there are genuine issues of material fact in dispute and the credibility of S2 and other management officials is at issue. Complainant contends that C1 was not credible in stating he allowed him (Complainant) to substitute in his place as the Acting Maintenance Superintendent for a couple of hours while he was absent. Complainant further argues that the decision to select C1 in January/February 2011 for the 120-day Acting Maintenance Superintendent position was made in part by S2 who was named as an RMO in his (Complainant's) prior EEO complaints. Complainant argues that he has specifically expressed interest in a detail to the Maintenance Mechanic position. Complainant lastly argues that, for reprisal, adverse actions are not limited to actions that affect the terms and conditions of employment, and he has been subjected to pattern of retaliatory discrimination.
The Agency submitted a brief in opposition to Complainant's appeal in which it urged the Commission to affirm the AJ's decision and the Agency's Final Order implementing the AJ's finding of no discrimination.
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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Aug. 5, 2015) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint will be reviewed de novo). 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 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").
ANALYSIS AND FINDINGS
AJ's issuance of a 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). 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, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, was given an opportunity to respond, was given a comprehensive statement of undisputed facts, and had the opportunity to engage in discovery. For the reasons discussed below, we find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor. We find that there are neither genuine issues of material fact nor matters of credibility that require a hearing before an AJ.
Agency's Partial Acceptance/Dismissal
The Agency, in its Partial Acceptance/Dismissal letter, dismissed claim 2 (120-day appointment) for untimely EEO Counselor contact, and also dismissed Complainant's hostile work environment claim for failure to state a claim. The AJ noted that Complainant did not respond to his April 19, 2012, Acknowledgement and Order, which instructed the parties that they had 30 days to comment on the propriety of the dismissals. As a result, the AJ found that Complainant waived review of the Agency's Partial Acceptance/Dismissal of the complaint because he did not avail himself of the opportunity to address the matter. We see no reason to disturb the AJ's decision here, as Complainant, on appeal, does not dispute that he failed to respond in a timely manner to the AJ's Order regarding the Agency's Partial Acceptance/Dismissal. Therefore, we will not disturb the dismissal of claim 2 and the dismissal of the hostile work environment claim. See Show v. U.S. Postal Serv., EEOC Appeal No. 0120083277 (Sep. 24, 2008), req. for recon. den'd, EEOC Request No. 0520090116 (Jan. 9, 2009) (complainant waived objection to the Agency's partial dismissal because she failed to oppose dismissed claim within 30-day comment period as ordered by AJ); Ellison v. U.S. Postal Serv., EEOC Appeal Nos. 0120073973, 0120080638 (Nov. 17, 2009) (complainant failed to respond in timely manner to AJ's Order pertaining to agency's partial dismissal of issues of formal complaint; AJ therefore properly deemed these issues waived). Therefore, we find that Complainant waived the opportunity to address the framing of his complaint and will address only Complainant's claim that he was not given the opportunity to act as the Acting Maintenance Superintendent for the day on May 6, 2011.
Claim 1
To prevail in a disparate treatment claim, 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 Constr. 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 804, n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
The AJ concluded that Complainant failed to establish a prima facie case on the bases of race and reprisal. To establish a prima facie case of discrimination based on race, Complainant must demonstrate that: (1) he was a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; (3) he was treated less favorably than similarly situated employees outside his protected class; and (4) a causal relationship existed between his membership in the protected class and the adverse action. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of discrimination based on reprisal, Complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
In the instant case, we see no reason to disturb the AJ's decision finding that Complainant failed to establish a prima facie case of discrimination on the bases of race and reprisal. Here, there is no dispute that the alleged responsible management official(s) were aware of Complainant's prior EEO complaints. However, there is simply no evidence that Complainant was subjected to an adverse action on May 6, 2011. There is no dispute that C1 was selected to serve as the 120-day Acting Maintenance Superintendent from January/February 2011 through June 2011. As such, the record reflects that C1 was already scheduled to serve as the acting Maintenance Superintendent on May 6, 2011. There is no evidence in the record that would indicate that C1 was absent that day, or that Complainant specifically requested to fill in for C1 on that day. Further, in the record, Complainant averred that he was not told by anyone if he would be the Acting Maintenance Superintendent on that day and did not express his discontent with not being given that opportunity on that specific date. We find that Complainant has not demonstrated circumstances from which an inference of discrimination can be drawn with respect to May 6, 2011. We note that, in the investigation and on appeal, Complainant asserts that he was not given the opportunity to be detailed to serve as the Acting Maintenance Superintendent on a continuous basis before and after May 6, 2011. However, as noted above, the Agency in its Partial Acceptance/Dismissal only accepted Complainant's May 6, 2011, claim for investigation, and the AJ found that Complainant waived the opportunity to contest the Agency's framing of his complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact that required a hearing; we discern no basis to disturb the AJ's finding that Complainant waived his opportunity to address the Agency's Partial/Acceptance dismissal; and we find that Complainant failed to establish a prima face case of discrimination based on race and reprisal. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
Date
1 This October 5, 2010, selection was the subject of a previous EEO complaint (EEOC hearing No. 430-2012-00004X, Agency No. DON-10-40085-03488) filed by Complainant, which the Commission accepted on appeal in Complainant v. Department of the Navy, EEOC Appeal No. 0120130277 (March 18, 2015). Therein, we affirmed the AJ's Decision without a Hearing, finding no discrimination.
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