0120120762
05-15-2012
Enrique Garcia, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Enrique Garcia,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120762
Hearing No. 451-2011-00102X
Agency No. ARCCAD09AUG03667
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 17, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor Facilities Manager, YC-1601-12, at the Agency's Directorate of Manufacture Process Production, Corpus Christi Army Depot (CCAD), in Corpus Christi, Texas.
On November 5, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (Hispanic), national origin (Mexican), color (brown), and age (over 40) when:
1. on or about July 23, 2009, he learned that his reassignment to the Directorate's Administrative and Management office was permanent and he was relieved of his supervisory duties as Division Chief; and
2. between May 29, 2009 to July 29, 2009, he was subjected to harassment by the Director (D1) when D1 questioned all of his requests for leave, D1 made annotations on his leave request forms, and when D1 assigned him as a team lead of the Directorate's audit team, D1 would not allow him to delegate assignments to other team members.
At the conclusion of the investigation, Complainant timely requested a hearing and the AJ held a hearing by videoconference on February 14, 2011. The AJ appeared from San Antonio, Texas, while the parties and witnesses were located in Corpus Christi, Texas. The AJ issued a decision on September 28, 2011, finding no discrimination. After considering the testimony of the witnesses, the AJ found that, based on the evidence of record, Complainant did not prove by a preponderance of the evidence that he was discriminated against because of his race, national origin, color, and age. In so finding, the AJ found that management witnesses articulated legitimate, nondiscriminatory reasons for the actions taken which Complainant failed to establish by a preponderance of the evidence were pretextual.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race, national origin, color, and age. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, the AJ noted that in February 2009, D1 had a discussion with Complainant concerning a complaint he received from a Directorate requesting him to instruct Complainant not to interfere with supervisory management officials in the chain of command of Complainant's son.1 The AJ further noted on May 26, 2009, D1 issued Complainant a Letter of Reprimand (LOR) for continuing to interfere with management officials in his son's chain of command. The AJ noted that three days after receipt of the LOR, Complainant submitted a leave request form requesting 24 hours of annual leave from June 1, 2009 to June 3, 2009 and a request for 16 hours of sick leave from June 4, 2009 to June 5, 2009.
The AJ noted that during his testimony, D1 stated that after he gave Complainant the LOR, he received an email from Complainant informing him that he would be on sick leave for surgery. D1 stated that he contacted a named supervisor (S1) from the third shift to take over Complainant's responsibilities temporarily while Complainant was on sick leave. D1 stated that during the relevant period, a named female employee (FE) approached him requesting leave without pay (LWOP) and in support of her request for LWOP, she submitted him a written assessment from her psychiatrist stating that she needed time off from work due to sexual abuse at work. D1 stated that he delegated the situation to S1 to handle.
Further, D1 testified that at that time, he needed an acting division chief senior to act in that capacity while Complainant was on sick leave and that Complainant had designed named employee (E1) by email, the individual being accused of sexual harassment by FE, to act in his place. D1 stated that he assigned S1 to act in Complainant's place during his absence because he was the same grade as Complainant. D1 stated that prior to Complainant being out on sick leave, he was aware that there was a situation between Complainant's subordinate and FE, and he asked Complainant to take care of it. D1 stated that FE approached him requesting extended leave and he stated that at that point he assumed that Complainant "took proper action and "there was no issues because I have not heard anything about it." D1 stated that he had lost confidence in Complainant's managerial judgment.
D1 stated that he disciplined Complainant by assigning him to the Directorate's Administrative and Management office and relieved him of his supervisory duties as Division Chief because he did not fix the problem between E1 and FE. Specifically, D1 stated that Complainant "failed to take appropriate action by condoning the conduct of one of his supervisors, [E1], who was intimately involved with one of the employees, the shop floor, that resulted in her claim to [being] sexually assaulted, harassed by one of the CCAD supervisor."
In his testimony, D1 stated "as I said earlier, it was a pattern of defiance. A pattern of '[Complainant], please do this, please do that' and defiance. 'No, I'm not going to follow your instructions.'" D1 stated that at the same time while Complainant was out on sick leave, he received reports of overtime abuse by one of the employees under Complainant's supervision. Specifically, D1 stated that a named Work Leader notified him that a named employee (E1) "leaves, abused leave. He report himself on leave on Sundays and doesn't show up and so on and so forth and I said, 'well, have you contacted his division chief' because that's the proper way to follow the chain of command, and she said 'yes, but [Complainant] didn't do anything about it.'...Now, I have talked several times to [Complainant] about settling this issue between a supervisor and a work leader about controlling overtime but. . . when I do not see results, . . . that tells me nothing is done."
Further, D1 stated that there were several investigations conducted concerning $500,000 of damages allegedly caused by staff supervised by Complainant. The record reflects that between April 2009 and May 2009, Complainant's division did not follow proper work-process procedure and as a result, severely damaged many helicopter radiators, costing the Agency $500,000 in damages. The record further reflects that the Agency determined that Complainant had not put adequate safeguards in place to prevent such an occurrence; and that some of those damaged radiators had already been installed in helicopters and an emergency search was conducted to find them in order to avoid potentially tragic consequences.
D1 testified that as a Division Chief, Complainant "failed to enforce discipline [or] follow tech data. [A named supervisor] arbitrarily made a decision to follow CCAD's established process in cleaning radiators that resulted in property damage of about $500,000." Specifically, D1 stated that "as a division chief, [Complainant] should have a discipline. working, a process in place to make sure that the supervisors are following instructions and are not arbitrarily just making a decision to do stuff without following tech data and a responsibility falls on the supervisor, falls on the division chief, falls on the director as well."
Complainant asserted that D1 designated S1 to substitute for Complainant during his absence because he favored S1, because his wife is Egyptian. The AJ found that based on the witnesses' testimony, the assertion that D1 and S1 frequently socialized outside the workplace was not supported by the evidence. The AJ found D1's testimony regarding the extent of his interaction with S1 and his wife to be credible. Specifically, the AJ determined that the evidence in the record was insufficient to persuade her that more than likely not, the reasons articulated by D1 for relieving Complainant of his supervisory duties were credible and appeared to have been done in the ordinary course of business.
Regarding claim 2, Complainant alleged that he was harassed by D1 when he started to question his leave requests and when D1 made annotations on his leave request form. The AJ noted that during the relevant time, Complainant requested Family Medical Leave Act (FMLA). The AJ determined that anytime an employee requests FMLA, the Agency requires supporting medical documentation for approval of FMLA. The AJ found that because D1 approved Complainant's leave requests, it was difficult to understand how D1's inquiries about what was required for approval of FMLA and an annotation on a leave slip, could be considered to be severe or pervasive enough to rise to the level of harassment.
Further, the AJ noted that Complainant alleged that D1 subjected him to harassment when he assigned him as a Team Leader but did not allow him to delegate assignments to his team members. The AJ noted that the record reflects that D1 tasked Complainant with conducting an internal audit. The AJ further noted that D1 asserted that because of the importance of the internal audit, he needed a high level manager like Complainant to conduct the internal audit. The AJ noted that Complainant alleged that based on a vote by his team members, it was determined that a cross-audit would be conducted. The AJ found although Complainant claimed that this was done in an effort to "get ahead," there was no dispute that conducting a cross-audit was not what D1 had instructed Complainant to do.
The AJ also found that Complainant assigned a Sheet Metal Mechanic to conduct the internal audit, which was in direct contradiction to D1's expectation. Because of the importance of the internal audit, D1 wanted a higher level official, like Complainant, to conduct the audit. The AJ determined that evidence in the record supports the Agency's contentions that despite Complainant's good intentions, he did not comply with D1's instructions to conduct an internal audit. Moreover, the AJ found while Complainant may have different ideas about how the audit should be conducted or who should conduct the audit, there was nothing in the record to support a claim that D1's assignment of this task to Complainant was done with discriminatory animus.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ "omitted evidence that was admitted at the hearing in her 'Official Record;' failed to consider key, clear and unbiased evidence showing that the reasons advanced by the Deciding Official, [D1], were false and untrue - evidencing pretext: the Administrative Judge's opinion contravenes the Family Medical Leave Act and other laws; and the Administrative Judge failed to apply the proper legal standards in evaluating this case." Complainant further argues that while the hearing took place on February 14, 2001, the AJ did not issue a final decision until September 28, 2011. Complainant state that the "tremendous lag between the time of the hearing and the Administrative Judge's decision causes concern as memories fade and the numerous other hearings and matters that the Judge considered in the interim may have made her memory less reliable."
Furthermore, Complainant argues that D1 unlawfully removed him from the Division Chief position and downgraded his responsibilities which lead to his constructive discharge.
ANALYSIS AND FINDINGS
As an initial matter, we again note that the AJ chose to conduct this hearing by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference hearing.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, 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 Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
Finally, the Commission notes that Complainant, on appeal, raises a new claim that D1 unlawfully removed him from the Division Chief position and downgraded his responsibilities which lead to his constructive discharge. We find that the new constructive discharge claim was not previously raised by Complainant and it is inappropriate for Complainant to raise it for the first time on appeal. Complainant is advised that if he wishes to pursue any additional claims for the first time on appeal, he should initiate contact with an EEO Counselor.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2012
__________________
Date
1 The record reflects that Complainant's son also worked at the CCAD. However, his son worked under a different Directorate and under a different chain of command.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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Washington, DC 20013
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