0120150438
06-30-2017
Cristopher N,1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cristopher N,1
Complainant,
v.
Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120150438
Hearing No. 510-2013-00380X
Agency No. FDICEO12082
DECISION
On October 31, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 11, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether Complainant was discriminated against based on race (African-American), age (date of birth: October 28. 1955) and reprisal (witness in an EEO complaint) when:
1. On August 29. 2012, A-1, Human Resources Officer, issued him a Letter of Admonishment for misuse of his government credit card; and
2. On September 7, 2012, A-1 issued him a letter notifying him that his one-year term appointment would not be extended and would end, effective October 25, 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Resolution Receivership Specialist at the Agency's East Coast Temporary Satellite Office facility in Jacksonville, Florida. On December 28, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him as set forth above in the statement of the issues.
Complainant began his employment with the Agency in October 2009, as a Resolution Receivership Specialist. He was initially hired as a temporary appointment not to exceed ("NTE") October 25, 2011. Complainant was re-hired as a temporary appointment NTE October 25, 2012. During his tenure as a Resolution Receivership Specialist, his supervisor always was M-1, Manager, Claims Unit C.
In June or July 2012, Agency management learned Complainant used his Agency sponsored Government Travel Card to receive nine unauthorized cash advances from ATMs between April 23, 2011 and March 28, 2012. The cash advances totaled $700.00, plus $6.00 in ATM fees. None of the cash advances at issue were obtained by Complainant within 72 hours prior to the start of official travel, nor were they obtained during authorized travel.
On July 26, 2012, M-1 asked Complainant to come to a meeting on this issue. At the meeting, Complainant stated at that time he was not aware of a 72-hour rule. Complainant stated the cash advances were related to "potential closing activities," and that he had withdrawn the cash in anticipation of participating in those activities. He explained that he was ultimately not needed on those dates.
On at least one occasion, Complainant withdrew cash the day after returning from official travel. He explained that he had attended a closing April 16, 2011 to April 22, 2011 and obtained cash from the ATM upon his return on April 23, 2011. He also stated that he took advances on April 23, 2011, July 22, 2011 and October 27, 2011. He stated that he "had considered them to be residual (unused) per diem and fell within the guidelines of travel per diem."
In 2012, Complainant was authorized for official travel only from May 17, 2012 to May 21, 2012. However, he used his Travel Card for ATM cash advances on January 19, 2012, February 29, 2012, March 14, 2012 and March 28, 2012. Those advances totaled $500.00.
On August 30, 2012, Complainant was issued a Letter of Admonishment (Letter) by M-1. The Letter admonished him for his unauthorized use of his Agency sponsored Government Travel Card (Travel Card), and set forth the specific non-authorized withdrawals.
The Letter went further to cite to Section 13 of FDIC Circular 2500.3. "FDIC-Sponsored Government Travel Card," which provided that obtaining cash advances more than 72 hours before the start of official travel, or when not authorized for official travel, are unauthorized uses of the Travel Card.
The Letter also referenced a meeting, on July 26, 2012, during which Complainant was confronted with the "unauthorized withdrawals, and where he admitted that he had withdrawn the cash from his Travel Card account, that he knew the cash advance transactions were not authorized at the time he received the advance because he was not on authorized official travel, and that he admitted the cash advances provided cash he used for personal reasons and had no relation to any official authorized travel.
The Letter further stated that Complainant had signed the Travel Card Acknowledgment which restricted the use of the card for only official travel and travel related expenses in accordance with Agency policy. Complainant's use of the card was suspended indefinitely, and his conduct was described as contrary to the Agency's expectations regarding acceptable conduct.
Complainant was provided five work days to respond to the Letter, but did not respond.
On September 7, 2012, Complainant received a letter indicating his temporary position with the Agency would not be renewed due to the abuse of his Travel Credit Card.
The Report of Investigation (ROI) also included a description of similar conduct by other individuals at the Agency. C-1, a former employee, was not African-American. He was found to have unauthorized cash advances using a Travel Credit Card. He was suspended as a result and his temporary appointment was not renewed. M-1 was not his supervisor.
C-2, C-3, and C-4 also were not supervised by M-1. C-2 has never had any Travel Card concerns including late payments, suspension or cancelations. C-3 was delinquent in paying twice and received a letter of warning. C-3 did not take any unauthorized cash advances. C-4 did not use a Travel Credit Card for unauthorized cash advances, but was late in making payments three times. He received a letter of warning for this, and his card was suspended.
The information presented concerning the reprisal allegation established that Complainant was a witness in August 2011, in an EEO complaint filed by a co-worker. Complainant did not have EEO complaints of his own filed prior to the instant complaint. Neither M-1, or those to whom he reported were aware of Complainant's participation in that matter at the time the allegations at issue arose.
Neither Complainant nor any other witness provided any evidence during the investigation pertaining to age.
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. When Complainant did not object, the AJ assigned to the case granted the Agency's December 18, 2013, motion for a decision without a hearing and issued a decision without a hearing on September 5, 2013. 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.
Specifically, the AJ found that Complainant, in his affidavit in the ROI, at no time disputed that he received any of the Travel Advance Card cash advances attributed to him. He also did not dispute that $700 was received in violation of the official travel restrictions. Complainant made arguments explaining why he took the advances; one being that he had "potential" work that never ended up happening, and another being that he considered his post-travel withdrawals to be valid as "residual per diem." He further argued that he was not aware of the "72-hour rule."
The AJ found that those arguments did not establish that the Agency was discriminating or retaliating against him by taking the actions they did considering the unauthorized cash advances. Further, the AJ found that Complainant did not identified any similarly situated individual outside of his protected class who was treated more favorably after engaging in similar violations. She found that the Agency had treated C-1 (not African-American) in the same manner as it treated Complainant. She also found that the other alleged comparators were all managers, and that Complainant did not present any facts showing that they had committed similar infractions related to their travel cards; therefore, they were found to not be similarly situated.
The AJ further found that Complainant had presented nothing to indicate that either M-1, M-4, nor M-5 (the management chain) were aware that Complainant had been a witness in a co-worker's EEO complaint prior to the issuance of the Letter or the decision not to renew his appointment.
The AJ concluded that there was nothing submitted into evidence that would establish an inference of a nexus between Complainant's race, age or prior EEO activity and the matters at issue here. Further, the AJ found that Complainant had not demonstrated that the Agency's explanation, i.e., the improper use of his Travel Card was pretextual.
CONTENTIONS ON APPEAL
Complainant contends that the investigation was flawed and not performed with due diligence. He states that the investigation failed to interview all of the witnesses that were mentioned in his claim. He asserts that W-1 could validate information as it relates to the unfair practices that were performed at the Agency's East Coast Temporary Satellite Office (ECTSO). He also states that the Office was plagued with non-adherence to Agency policy, regulations, and that the Agreement between the Agency and the Union. He states that there were serious protocol issues that were not followed or performed by the ECTSO.
Complainant also maintains that there where improprieties during the attempt to mediate when he overheard the investigator and the mediator arranging dinner plans for that same evening. Furthermore, Complainant argues that the investigation failed to perform a global review of all Travel Advance Card matters in its entirety. He states that there was "no mention of contacting the responsible parties within the [Agency] that could provide this information." In addition, he states that he feels the AJ may have overlooked some key points and documentation that are noted in his claim. He did not, however, specify the alleged omissions by the AJ.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 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).
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is generally a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases of race and age discrimination and retaliation 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, that Complainant established prima facie cases of race, age and retaliation.
We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. The Agency maintains that it took the subject actions in this matter because of Complainant's unauthorized withdrawals from his Travel Advance Account, as established by the Agency's investigation and Complainant's admissions. Based on this, the Commission finds that the Agency has met its burden of articulating a legitimate, nondiscriminatory reason for the actions at issue.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. To prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretexts for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus based on race, age and engagement in prior EEO activity. We find that there were no facts provided by Complainant under which a fact finder could find that he was subjected to discrimination as alleged. We note in this regard that there is an absence of viable comparative evidence indicating race or age discrimination by the Agency, and there were no facts elicited during the investigation that would lead to findings of race or age discrimination or retaliation, nor did Complainant provide relevant, and probative facts on appeal that established discriminatory animus.
On appeal, Complainant, among other things, asserts that the investigation failed to interview all of the witnesses that were mentioned in his claim and that one witness could "validate" instances of rule violations by employees. He states that the Office was "plagued with non-adherence to [Agency] policy regulations," and non-adherence to the collective bargaining agreement with the Union. He also claims that there were serious protocol issues that were not followed or performed by the Agency. We find, however, these claims, even if true, do not constitute evidence of discrimination. They are mere assertions containing no admissible evidentiary facts. A factfinder would be unable to find discrimination based on mere assertions.2
With respect to Complainant's claim that he overheard the investigator and the mediator arranging dinner plans, we find that this is not relevant to the issues presented in this case. We note that, even if true, it does not indicate that discrimination occurred with respect to the underlying complaint. Moreover, to the extent Complainant believes that the mediator was bias and that this resulted in mediation being unsuccessful, we note that the fact that mediation efforts were not successful cannot be the subject of a subsequent EEO complaint.
Complainant also claims that the investigation failed to include a global review of the administration of the Travel Advance Card policy. Although Complainant had the right to obtain information concerning the "global" administration of the Travel Advance Card policy during discovery, he did not exercise that right. Also, the pertinent issue in this matter is not the Agency's overall administration of the program, but whether the Agency discriminated against Complainant as was alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the AJ's issuance of a decision without a hearing was appropriate, and a preponderance of the record evidence does not establish that discrimination or reprisal occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
__6/30/17_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that, in addressing the AJ's issuance of a decision without a hearing, complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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