0120103032
12-29-2010
Harold Stanford, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Harold Stanford,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120103032
Hearing No. 570-2009-00389X
Agency No. OIG200701082
DECISION
On July 21, 2010, Complainant filed an appeal from an Administrative Judge's (AJ) decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the AJ's decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Criminal Investigator, GS-15, at the Agency's Headquarters Investigations facility in Washington, DC. In his current position, Complainant is the Special-Agent-in-Charge (SAC) of the Program Investigation Division (PID). Prior to a promotion into his current position, Complainant served as the Acting Special-Agent-in-Charge (ASAC) for PID, which was a GS-14 position. While an ASAC in 2005, Complainant's supervisor (S1) assessed his performance as "fully successful." Following his promotion, Complainant's new supervisor (S2) rated Complainant "fully successful" in 2006, and "unacceptable" in 2007.
On February 5, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), age (41), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Since 2005, Complainant has been denied attendance at impromptu or other meetings, where issues relating to his assignments and subordinate staff were discussed, which undermines his credibility as a manager, his ability to remain current on issues involving his group, and his effective representation of his staff;
2. Since 2005, Complainant's staff has not been given high-profile assignments that would have enhanced his performance level and recognition as a successful supervisor;
3. Complainant was rated below his performance level ("Fully Successful") for appraisal year 2006;
4. Complainant was not given performance awards for performance year 2006;
5. On August 3, 2007, Complainant was given an "Unacceptable" performance rating;
6. On August 20, 2007, he was placed on a Performance Improvement Plan (PIP), which was subsequently extended beyond the initial 90 days to December 17, 2007;
7. While on a PIP, Complainant was assigned to a remote mentor located in Chicago, who does not have Headquarters operations experience or experience in the division;
8. In November 2007, Complainant was assigned an Executive Coach from a private company, to provide him with coaching and mentoring in developing his management skills;
9. On unspecified dates, Complainant's staff has been allowed and encouraged not to discuss matters with him and to go directly to upper management, which has undermined his credibility, authority and ability to be effective in his current position;
10. On unspecified dates, Complainant was micromanaged; and
11. On unspecified dates, Complainant was not provided administrative support.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 10, 2009, motion for a decision without a hearing and issued a decision without a hearing on June 22, 2010.
CONTENTIONS ON APPEAL
Complainant did not submit a brief in support of his appeal. In its brief on appeal, the Agency argues that the Commission does not have standing to review Complainant's appeal because Complainant "filed his Notice of Appeal on the AJ's decision and not on a final agency action." In the alternative, the Agency argues the AJ's decision should be affirmed because the record yields no evidence of unlawful discrimination.
ANALYSIS AND FINDINGS
As a preliminary matter, while the Agency correctly argues that Complainant's appeal is premature because it was filed prior to the end of the forty-day period provided by 29 C.F.R. � 1614.401(b), we nonetheless accept Complainant's appeal as timely in the interests of judicial economy. See Baker Norris v. Dep't of State, EEOC Appeal No. 0120101889, at n.1 (August 20, 2010); Ortiz v. Dep't of Homeland Sec., EEOC Appeal No. 0120074016, at n.1 (April 2, 2009).1
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. (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.
After a comprehensive review of the evidentiary record, we agree with the AJ that the record was adequately developed in this matter. Because there exist no genuine issues of material fact, the AJ appropriately issued a decision without a hearing.
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). She must generally 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). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In response to Claim 1, S2 testified that management held meetings with Complainant's subordinates as part of a "360 feedback" plan as an attempt to develop GS-15 employees. One of Complainant's subordinates (SUB1 - coffey) noted that the 360 feedback was a routine process. During the process, employees were asked to attend a meeting to elaborate on written comments submitted. The record does not reveal any other meetings Complainant did not attend.
S2 denies the allegation contained within Claim 2. She maintains that all work and assignments under PID's purview continues to be assigned to Complainant.
With regards to the allegations in Claims 3 through 6, S2 explained in her affidavit that prior to Complainant's promotion to a supervisory position, including as an ASAC, Complainant performed at a "fully successful" level. However, after Complainant assumed supervisory responsibilities, S2 expressed concern about Complainant's indecisiveness and inability to make decisions [and] his reluctance to appropriately manage his employees." Consequently, S2 rated Complainant "fully successful" instead of Complainant's desired "outstanding" in 2006, and "unacceptable" in 2007. Several employees submitted affidavits supporting S2's concerns.
Further, S2 stated that Agency policy dictates performance awards may only be given to employees rated "outstanding" or "superior" on their reviews. Because Complainant was rated, at best, "fully successful," he was not in line to receive an award.
S2 explained that she "was committed toward helping [Complainant] attain his full potential as a GS-15 leader in his division." In 2006, along with general concerns regarding Complainant's performance, S2 stated that Complainant failed to timely respond to a high priority investigation in a timely manner. For these reasons, S2 rated Complainant as "unacceptable" in 2007 and placed him on the PIP.
As to claim 7, S2 noted that the mentor to whom Complainant was assigned was qualified to work with Complainant. Specifically, the mentor had received "outstanding" on his recent performance ratings and "is a strong leader, has an extensive investigative background . . . and has developed many criminal investigators and managers."
S2 states, in response to Claim 8, that she assigned Complainant an executive coach in an attempt to help Complainant improve his performance. S2 further testified that she had no input in selecting the executive coach; she acted upon a recommendation from another office within the Agency.
In regards to Claim 9, S2 denied encouraging Complainant's staff to subvert the chain-of-command and undermine Complainant's credibility and authority. To the contrary, S2 asserts she and S1 encouraged staff to resolve issues with their direct supervisors and work up the chain of command if necessary.
Addressing Claim 10, S2 acknowledges having frequent meetings with Complainant during the PIP in an attempt to help Complainant understand his assignments and deadlines with the goal of improving his overall performance.
In response to Claim 11, S2 attests that the Agency was unable to replace Complainant's former administrative support person due to budgetary constraints. She notes that the Agency is under a hiring freeze.
Complainant makes no attempt on appeal to carry his burden of demonstrating the Agency's articulated reasons to be pretext for discriminatory animus. In his opposition to the Agency's motion for a decision without a hearing, Complainant argues that S2 "targeted her former friend and colleague for professional annihilation." Specifically, Complainant contends that S2's statements are without support. Further, Complainant contends that S2 treated him in a "peculiar" way when she sent him for one-month training at the Federal Executive Institute despite rating him "unacceptable."
S2's statements are supported by affidavits in the record provided by other staff members. Further, S2 has explained that she sent Complainant for training in an attempt to help Complainant improve his performance.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's final decision.
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
December 29, 2010
__________________
Date
1 Additionally, the record contains no evidence the Agency issued a final order accepting or rejecting the AJ's decision. See Pair v. Dep't of the Navy, EEOC Appeal No. 0120092827 (December 7, 2009) (accepting Complainant's premature appeal as timely because the agency failed to issue a final order within forty days of the AJ's decision).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103032