0120113502
02-19-2013
Ibrahim E. Shaheen, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Ibrahim E. Shaheen,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113502
Hearing No. 430-2010-00127X
Agency No. 094215801033
DECISION
On June 20, 2011, Complainant filed an appeal from the Agency's June 17, 2011 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer at the Agency's Norfolk Navy Shipyard facility in Portsmouth, Virginia.
On May 12, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Lebanese) and age (57) when:
1. since 2006, Complainant has been subjected to a hostile work environment; and
2. since January 2008, Complainant has not been provided the same opportunity as another employee to rotate into an acting supervisory engineer position in order to gain qualifications for when to the position was permanently filled.
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 September 17, 2010, motion for summary judgment, and issued a decision without a hearing on April 13, 2011. Specifically, the AJ found that Complainant failed to show that he had been subjected to unwelcome verbal or physical conduct because of his age or national origin, and further, that the actions alleged were not so severe as to constitute a hostile work environment. With regard to the supervisory engineer position, the AJ found that it was undisputed that only Work Leaders were considered for such positions, and Complainant was not a Work Leader. 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.
ANALYSIS AND FINDINGS
We must 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.
The record shows that Complainant's former supervisor ("FS") (American1, age not provided) left that position "in the late Fall of 2007" to assume supervisory duties on another team. See Report of Investigation (ROI), Exhibit F1, p. 1. While FS was still Complainant's supervisor, she selected Complainant's coworker ("WL") (American, born 1963) as the Work Leader of Complainant's unit. See id., p. 2. Complainant stated in his Formal Complaint and testified during the investigation that, in January 2008, after the departure of FS, his second-line Supervisor ("S2") (American, born 1965) made an announcement that WL was going to be made acting Supervisory General Engineer for 90 to 120 days "and after that [S2] was going to rotate the group2 leaders into the position." See ROI, Exhibit H, p. 49. While the Agency denies there was ever an announcement that the acting supervisory position would be rotated, a coworker of Complainant read an email into the record at the investigative fact-finding conference from S2 indicating WL was given a 90-day rotational appointment. ROI, Exhibit H, pp. 347-348.
Complainant further testified that "after like four months," he repeatedly told S2 and others in management that he was interested in the position "but nothing happened." Id. The record shows that WL remained in the acting supervisory position for over 18 months. Complainant alleged that he was more qualified than WL to hold the acting supervisory position because he had ten more years of experience than WL, a mechanical engineering degree, and work experience in every shop in the shipyard, as well a nuclear experience. He believed that the only reason WL was placed in the position over himself was because of a preference for a younger individual of American national origin.
The AJ found that the Agency articulated a legitimate nondiscriminatory reason for the fact that Complainant was not rotated into the temporary acting Supervisory General Engineer position, stating "the Agency has proffered evidence that [S2] considered only Work Leaders for the temporary position in question. It is undisputed that [WL] was a Work Leader at the time, and Complainant was not." AJ's Decision, p. 10. The AJ, however, did not identify the evidence proffered by the Agency. Furthermore, while S2 provided a lengthy and complicated response when asked about the temporary supervisory position during the investigation, we note that he did not state that the reason Complainant was denied the Position was because Complainant was not a Work Leader. See ROI, Exhibit H, pp. 207-09. In fact, S2's response does not fully address the issue of why Complainant was not rotated into the acting supervisory position on a temporary basis, but instead addresses the Agency's attempts to find a permanent candidate to fill the position. See id. During his rebuttal, Complainant pointed out that management had not provided a legitimate nondiscriminatory reason for not rotating him into the acting supervisory position. See id., p. 423.
We further note that, contrary to the AJ's finding that it was "undisputed" that Complainant was not a Work Leader, Complainant asserts that he became a Work Leader to replace WL when he was first appointed to the acting supervisory position. WL confirmed this fact in his affidavit, stating that Complainant had been a Work Leader "since January 21, 2008." ROI, p.19, Exhibit B1. Assuming that it is the Agency's position that Complainant was not rotated into the acting supervisory position because he was not a Work Leader, the issue of whether or not Complainant was a Work Leader becomes a material issue that is placed into question.
Finally, we note that a Supervisory HR Specialist ("HR") (American, born 1947) averred that there was no reason why Complainant could not have been rotated into the acting supervisory position after WL's initial 90 or 120-day period was over. See ROI, Exhibit H, pp. 298-99.
After careful review of the record and the contentions on appeal, we conclude that the AJ failed to ensure that the record was sufficiently developed before granting the Agency's motion for a decision without a hearing. We find that there are a number of material facts at issue and that summary judgment was improper. Accordingly, we VACATE the Agency's final order and REMAND the complaint3 for further processing in according with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Norfolk Local Office a request for a hearing within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on Complainant's claims in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a new final action in accordance with 29 C.F.R. � 1614.110.
MPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
February 19, 2013
__________________
Date
1 The Agency Report of Investigation (ROI) states that the national origin of the witnesses is stated as presented by the witnesses during testimony.
2 The record uses the terms work leader and group leader interchangeably.
3 In order not to bifurcate the complaint, we are also sending back Complainant's hostile work environment claim to be reconsidered as part of the hearing. On appeal, Complainant asserts there are numerous credibility issues which need to be determined in order to properly adjudicate this claim.
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0120113502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113502