0120063798
11-16-2007
Donald J. Schultz, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Donald J. Schultz,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200637981
Hearing No. 160-2006-00070X
Agency No. DON 04-65871-10380
DECISION
On June 9, 2006, complainant filed an appeal from the agency's May 3,
2006, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Technical Director, Supervisory General Engineer, GS-801-15, with the
Program Management Office (PMO), Strategic Systems Programs, Shipboard
Systems, Mitchel Field Detachment in Long Island, NY. Complainant had
held this position for 19 years.
The record reflects that the Commanding Officer (CO) of the PMO during
the relevant time period began serving in his position in November 2003.
Shortly after he took command, the CO interviewed fifteen civilian
personnel who were under complainant's supervision and discovered that
there may have been morale issues in the office. The CO subsequently
ordered complainant to interview each of the civilian employees to
address the morale issues and to hold weekly staff meetings. The CO sent
complainant a memorandum dated November 26, 2003, directing complainant
to meet with each employee before December 15, 2003 and to ask about any
concerns they may have had with their work environment. The memorandum
further directed complainant to provide the CO with a written report
no later than December 31, 2003 on his progress, including the names of
the employees interviewed and the issues surrounding any morale issues
complainant identified. The memorandum directed complainant to include
a detailed written plan of action and a timetable of how complainant
planned on addressing employee concerns. The memorandum also ordered
complainant to provide follow up status reports in writing at the end
of each month beginning in January 2004.
Complainant provided the CO with a memorandum dated December 31, 2003,
indicating that he had not met with any of the civilian employees but
intended to start interviewing the staff in January 2004. Complainant
also indicated in the memorandum that he intended to hold rounds of
meetings throughout the year and that he intended to report on meetings
"quarterly or when significant information requires more frequent
reporting." Complainant alleged that the CO did not respond to his
December 2003 memorandum, and he assumed the CO had accepted a modified
version of the timetable. The CO contacted complainant several times
between January and March 2004, informing complainant that he had to
complete the tasks assigned to him by the November 2003 memorandum.
By March 2004, complainant had interviewed only four employees, and
he had only held one recorded weekly staff meeting. On April 2, 2004,
the CO proposed a five day suspension of complainant for Failure/Delay
in Carrying out Work Orders. On April 14, 2004, the CO sustained the
proposed five day suspension, effective April 26, 2004.
On December 1, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of age (D.O.B. 3/26/33) when:
(1) Complainant was suspended for five days for "Failure/Delay in Carrying
Out Work Orders" on April 14, 2004; and
(2) He was subjected to harassment by the Commanding Officer (CO) of
the PMO from November 2003 until the time he retired in May 2004.
On March 3, 2005, the agency issued complainant a Notice of Partial
Acceptance/Dismissal of Discrimination Complaint, indicting that
the agency accepted complainant's claim regarding his suspension for
investigation. The agency dismissed complainant's harassment claim,
pursuant to 29 C.F.R. � 1614.107(a), finding that complainant failed to
state a claim of discriminatory harassment. The agency notice indicated
that complainant's complaint did not allege constructive discharge or
seek compensatory damages.
At the conclusion of the investigation, complainant was provided 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. On February 16, 2006, complainant submitted a Motion
to Accept Dismissed Issues and for an Award of Sanctions. Specifically,
complainant moved for the AJ assigned to the case to accept complainant's
dismissed harassment claim and sanction the agency for allowing the
responsible management official in the case (the CO) to issue the Notice
of Partial Acceptance/Dismissal of Discrimination Complaint. On March 3,
2006, the AJ assigned to the case denied complainant's motion.
On February 17, 2006, the agency moved for a decision without a hearing.
Over the complainant's objections, the AJ granted the agency's motion
and issued a decision without a hearing on March 20, 2006. The AJ's
decision found that complainant failed to prove that the issuance of the
five day suspension was motivated by age discrimination. The AJ further
found that additional discovery was unnecessary because the case was ripe
for summary judgment based on the record documentary evidence and the
facts admitted by the complainant. The AJ also affirmed the agency's
previous decision to dismiss complainant's harassment claim pursuant
to 29 C.F.R. � 1614.107(a)(1) as well as her previous decision to deny
complainant's motion for sanctions. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to age discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ improperly granted the
agency's motion for a decision without a hearing because the record
was not adequately developed for summary disposition, there were
material facts in dispute, and the AJ improperly found facts by making
credibility determinations. Complainant also argues that the AJ erred in
denying his motion to accept the hostile work environment claim because
his allegations were sufficient to state a valid claim of harassment.
Complainant further argues that the AJ erred in denying complainant's
motion for sanctions against the agency for engaging in a conflict of
interest in processing his EEO complaint. Finally, complainant argues
that the AJ erred in granting the agency's motion to stay discovery
proceedings before issuing a decision without a hearing.
In response, the agency requests that we affirm its final decision.
The agency argues that complainant's claim regarding his suspension
should be dismissed as moot because "interim events have completely
eradicated the effects of the alleged violation, and it is unlikely to
recur as the appellant has retired." The agency further argues that,
notwithstanding the fact that the issue is moot, the AJ properly found
no discrimination. The agency argues that complainant's harassment
claim was properly dismissed for failure to state a claim and that
complainant's Motion to Accept Dismissed Issues and for an Award of
Sanctions was correctly denied. The agency notes that complainant did
not oppose the agency's motion to stay discovery.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (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").
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. Department 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).
Claim (1) - Suspension
After a careful review of the record, the Commission finds that the
AJ correctly determined that it was appropriate to issue a decision
without a hearing with respect to claim (1). To prevail in a disparate
treatment claim such as this, 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 Construction 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,
nondiscriminatory reason for its actions. Texas Department of Community
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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decisionn making process and had a determinative influence on the
outcome." Id.
Assuming arguendo that complainant established a prima facie case of
age discrimination, we find that the agency articulated a legitimate,
nondiscriminatory reason for suspending complainant, namely that he
did not fully comply with the CO's orders. The agency indicated that
complainant was issued the suspension at issue for failing to meet
the requirements of the November 2003 memorandum. Agency officials
noted that complainant was issued a five day suspension because he had
previously been issued a one day suspension for misuse of a government
computer/e-mail.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We concur with the AJ's determination that complainant
failed to provide any evidence of pretext in the record and that there
was sufficient evidence in the record for the AJ to issue a decision
without a hearing on this claim. The record reflects that the CO ordered
complainant to interview each of the civilian employees, hold weekly
staff meetings, and provide the CO with a written report detailing his
findings and a plan of action by December 31, 2003. By his own admission,
complainant acknowledged that he neither interviewed any of the employees
by December 31, 2003 nor held weekly meetings. Complainant argued below
that the suspension was not justified because he felt the memorandum
he submitted to the CO on December 31, 2003 modified the deadlines
for complainant to complete the tasks required of him. However, the CO
submitted a declaration stating that the timetable was never modified and
that he repeatedly communicated to complainant that he was expected to
follow the CO's original orders. The CO's testimony on this matter is
supported by several e-mails in the record from January and March 2004,
which reveal that the CO felt this task was of the utmost importance and
that the CO had expressed dissatisfaction with complainant's failure to
complete the tasks assigned to him. Moreover, we note that complainant
still had not fully completed the tasks assigned to him by March 2003.
Furthermore, we find that the record is devoid of any evidence that
the agency's actions were motivated by discriminatory animus towards
complainant's age.
On appeal, complainant argues that the AJ erred in granting the
agency's motion to stay discovery and issue a decision without a hearing.
However, we concur with the AJ's determination that further discovery was
unnecessary in this case because the record was ripe for summary judgment
based on the record documentary evidence. We note that complainant had
ample time to refute the agency's contention that he failed to follow
orders. We also find that the record does not support complainant's
contention that the AJ unfairly relied upon credibility determinations
in her decision, and we concur with the AJ's determination that there
were no remaining material facts in dispute. Therefore, based on our
careful review of the record, we find that complainant has failed to
establish that the agency's articulated reasons for issuing him the
suspension in claim (1) were a pretext for unlawful age discrimination.2
Claim (2) - Hostile Work Environment
Complainant argues on appeal that the AJ erred in denying his motion
for sanctions against the agency for engaging in a conflict of interest
and his motion to accept complainant's hostile work environment claim.
Complainant argues that the CO should not have been allowed to issue the
Notice of Partial Acceptance/Dismissal of Discrimination Complaint, which
dismissed complainant's harassment claim for failure to state a claim,
because the CO was the official who complainant alleged subjected him
to a hostile work environment.
The Commission has noted that "[a]gencies must avoid conflicts of position
or conflicts of interest as well as the appearance of such conflicts."
EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), 1-2 (November
9, 1999). "Clearly, it is a conflict of interest on its face for an EEO
investigator or a complaints manager to be responsible for processing
a complaint in which they have been charged with participating in the
discrimination against the complainant." Smith v. United States Postal
Service, EEOC Request No. 05920962 (September 7, 1993). The Commission
finds that it was clearly a conflict of interest for the CO to issue a
notice dismissing complainant's harassment claim because the CO was the
official charged with discrimination. The agency should have ensured
that any individuals responsible for processing complainant's claims were
not also accused of unlawful activity in complainant's complaint.3 That
said, given the facts of this particular case, we find that the agency's
conduct does not warrant sanctions.4 At most the agency's conduct could
warrant a remand, but we are not persuaded that the incidents alleged
by complainant stated a claim of discriminatory harassment.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
Complainant alleged that he was subjected to a hostile work environment
when the CO allegedly took several actions against him, including
yelling at him, making false accusations against him, assigning him
work that required 50 to 60 hours to complete, requiring him to drive
a long distance to a meeting the day before a holiday, chastising
him for finding fault with another employee who made errors, and
threatening discipline/suspending him for failing to follow orders.
We find that the incidents taken together fail to state a claim under
the EEOC regulations because, even when viewed together in a light
most favorable to complainant, the events described do not indicate
that complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of his employment. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Furthermore, we note that there is insufficient evidence in the record
suggesting that complainant was subjected to harassment due to his age
to warrant a remand.
Finally, the Commission also finds that complainant has failed to
establish that his retirement was the result of a constructive discharge.
The Commission has established three elements which complainant
must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against complainant created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. See Walch v. Department of Justice, EEOC Request
No. 05940688 (April 13, 1995). We find that complainant has not shown
that the agency engaged in discrimination which resulted in intolerable
working conditions.
CONCLUSION
After a careful review of the record, the Commission finds that summary
judgment was appropriate in this case because there are no genuine
issues of material fact in dispute. We find that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus towards his age. We discern no basis to disturb
the AJ's decision.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in the decision, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 16, 2007
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 We further note that, on appeal, the agency has demonstrated that
the alleged violation will not recur since complainant has retired and
is no longer with the agency. The agency has established on appeal
that the agency has completely eradicated the effects of the alleged
discrimination because complainant's suspension was rescinded in June
2006, a new SF-50 was issued, a pay-action was initiated and paid out
to complainant for the five-day period, and all documentation regarding
the suspension was removed from his personnel file.
3 The agency is reminded of its duties under 29 C.F.R. � 1614.102,
most notably subpart (c)(2) which requires that the agency EEO Director
evaluate from time to time the sufficiency of the total program for
equal employment opportunity and report to the head of the agency with
recommendations for improvement, including remedial or disciplinary action
with respect to officials who have failed in their responsibilities.
4 We note that attorney's fees and compensatory damages are not remedies
available to complainant under the ADEA. See Falks v. Department of
the Treasury, EEOC Request No. 05960250 (September 5, 1996).
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0120063798
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063798