Dallas D,1 Complainant,v.John B. King, Jr., Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionJul 21, 2016
0120141371 (E.E.O.C. Jul. 21, 2016)

0120141371

07-21-2016

Dallas D,1 Complainant, v. John B. King, Jr., Secretary, Department of Education, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Dallas D,1

Complainant,

v.

John B. King, Jr.,

Secretary,

Department of Education,

Agency.

Appeal No. 0120141371

Hearing No. 570-2008-00239X

Agency No. ED-2006-05-00

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 5, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision which found that Complainant did not demonstrate that he was subjected to discrimination or reprisal.

ISSUE PRESENTED

The issue presented in this case is whether the AJ erred in issuing a decision without a hearing finding that Complainant did not demonstrate that he was subjected to discrimination or reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Associate at the Agency's Institute of Education (IES) facility in Washington, D.C. On June 23, 2006, Complainant filed a formal complaint alleging that:

1. The Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (mental), age (59), and reprisal for prior protected EEO activity when from 2003 to the present:

a. The Commissioner of the Institute of Education Sciences (IES) assigned the Complainant to the position of Acting Associate Commissioner of Policy and Systems Division without officially detailing him;

b. The IES Commissioner stated that he was "happy to be hiring younger staff members;"

c. The IES Commissioner allegedly yelled at the Complainant and threatened to revoke his authority after the Complainant provided "Outstanding" ratings for his employees over 40;

d. The IES Commissioner allegedly refused to provide direction, guidance, or feedback to the Complainant in a normal superior/subordinate relationship;

e. The Complainant was allegedly denied training; and

2. He was subjected to an ongoing hostile work environment from December 2003 to the present on the bases of his race (white), age, sex (male), disability (mental illness/depression), and reprisal (prior EEO activity) when he was denied performance-based within-grade increases (WIGIs), his supervisor touched his hand on several occasions, and when other actions were taken against him which adversely affected the terms, conditions, and privileges of his employment.

Following an investigation by the Agency, Complainant requested a hearing before an AJ. The Agency filed a motion for summary judgment which argued that no material facts were at issue and Complainant could not demonstrate that he was subjected to discrimination and/or reprisal. Complainant submitted a brief in opposition. Notwithstanding, the AJ granted the Agency's motion and issued a decision without a hearing finding that Complainant did not demonstrate that he was subjected to discrimination and/or reprisal as alleged.

Specifically, the AJ found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that with respect to claim a, being assigned the position of Acting Supervisor, the AJ found that both Complainant and a female employee were given acting assignments and Complainant indicated that he was honored to be placed in the position. The Agency explained that Complainant and the coworker were asked to work in an acting position until someone could be hired for the position.

With respect to claim b, where Complainant indicated that his supervisor stated that he was happy to be hiring younger people, the Agency explained that the statement was a stray remark and was not made to impugn older workers. The AJ found that Complainant did not demonstrate that any actions were taken against him as a result of the statement.

With respect to claim c, Complainant being yelled at for giving all his employees "Outstanding" ratings, the Agency explained that Complainant's supervisor did not believe that everyone could have received the same rating and told Complainant that the ratings should be more like a bell curve. Complainant argued that such a rating would adversely affect older workers as all of his direct reports were over 40. The AJ found, however, that Complainant gave no explanation for why older workers would be affected by giving diverse ratings as the supervisor had explained that every worker was not working at the "Outstanding" rating.

Further, with respect to claim d, where Complainant maintained that he was not given direction or feedback, the Agency asserted that weekly meetings were held regarding what was expected. The AJ found that Complainant provided no evidence which showed that feedback was withheld from him.

Finally, with regard to claim e, where Complainant maintained that he was denied training, the Agency indicated that Complainant went to several trainings during this time period but his request was not granted on this occasion because he was not presenting a paper at the conference that he wanted to attend. The Agency maintained that it was a cost savings measure and had nothing to do with Complainant's protected bases. The AJ found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.

Similarly, with respect to issue no 2, where Complainant maintained that he was not provided a WIGI and that other actions were taken against him that affected the terms and conditions of his employment, the Agency explained that Complainant was regularly provided a WIGI when he received satisfactory ratings. Moreover, the Agency noted that after Complainant's acting position ended, he received a salary increase. The Agency maintained that Complainant's protected bases were never considered as his supervisor hired him for the position and gave him additional opportunities. The AJ found that Complainant presented no evidence which showed that Complainant was denied a WIGI when he was due one or that any actions were taken against him that affected his terms and conditions of employment. The AJ found that Complainant did not show that the Agency reasons were pretext for discrimination.

Finally, with regard to Complainant's harassment claim, Complainant maintained that as a result of problems at work he experienced severe depression. He maintained that his supervisor touched him on the arm and shoulder on three occasions and he, Complainant, believed these incidents represented an effort by the supervisor to demonstrate her power over him. The AJ found that the three touches were not severe or pervasive enough to establish a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the AJ erred in not finding that he established discrimination against older employees. Specifically, Complainant contends that the AJ erred in finding that his supervisor's statement that he was "happy to be hiring younger staff members," was "nothing but a stray remark that was not accompanied by any action." Complainant also asserts that the AJ overlooked the fact that the supervisor gave preferential treatment to younger workers, that he tried to push out older workers, and that the supervisor insisted that Complainant lower the performance rating of older workers - yet did not require that younger workers performance reviews be lowered. Complainant explained that all of his direct reports were over 40 years old so older workers were affected. Complainant also contends that other employees over 55 told him that they believed that the supervisor perceived the older staff to be a problem because older workers were not receptive to change.

Further Complainant maintains that the AJ erred in ignoring the facts on the record regarding his assignment to the National Center for Education Statistics (NCES) and the terms and conditions of his employment there. Complainant maintains that the record shows that these events were discriminatory because (1) the AJ erred in ignoring the facts on the record which showed that his assignment to NCES was a demotion which resulted in him being denied WIGls; (2) the AJ erred in ignoring the facts on the record which showed that he was set up to fail at his position at NCES, because the Agency repeatedly denied him guidance, supervision, and training; and (3) the AJ erred in ignoring the facts on the record which showed that the Agency's overall conduct towards him amounted to a hostile work environment.

Complainant also argues that when he was transferred to the National Center for Education Statistics (NCES), he was demoted: and his job description changed from "Senior Associate" to merely "Research Scientist," thus stripping him of his senior title which he maintains was an illegal adverse action against him. Complainant argues that with the new position he was denied WIGIs. He indicates that he worked for more than seventeen months without a WIGI and was repeatedly told that he would not be getting a WIGI. Complainant contends that being stripped of a senior title and moved to a position without pay increases was another adverse action taken against him.

In response, the Agency maintains, among other things, that Complainant has not presented any material evidence that would affect the outcome of his claims and, as a result, the AJ's decision should be affirmed. The Agency maintains that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that the reasons were a pretext for 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] 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 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 Agency's motion 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 motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.

We also find that even if we assume arguendo that Complainant established prima facie cases of discrimination based on reprisal and discrimination, the Agency articulated legitimate, reasons for its actions, as was articulated above in great detail. Complainant and a female employee were asked to serve in an acting position until the position could be permanently filled. Complainant's supervisor made a random remark about being able to hire younger staff members but this in no way affected Complainant in any work manner. Complainant was instructed to change the rating of his direct reports because he had given them all outstanding ratings and his supervisor did not believe that all of the workers were performing at that level.

The Agency also showed that Complainant was provided feedback in meetings that were held weekly, and that Complainant was denied a specific training request because he had already attended training that year and he was not a presenter at the training that he wanted to attend. According to the Agency, this decision was based on saving money. Further, the Agency explained that Complainant did receive WIGI's throughout his employment and that the only time that he did not receive a WIGI was when he received a less than successful rating. Finally, the touches made by his supervisor on his arm were not severe or pervasive enough to establish a hostile work environment. Based upon the evidence we find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination or that the incidents complained of were severe or pervasive enough to establish a hostile work environment.

CONCLUSION

On appeal, we find that other than Complainant's conclosury statements he has presented no evidence which demonstrates that he was subjected to reprisal or discrimination on any bases. Accordingly, we find that the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Therefore, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that he was subjected to discrimination or reprisal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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. The requests 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 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

__7/21/16________________

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.

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