0120090574
05-12-2011
James F. Mattil, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
James F. Mattil,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120090574
Hearing No. 570-2008-00374X
Agency No. DOS-F-093-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s November 25, 2008 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’s review is de novo. 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 the Chief of Staff at the Agency’s Office of Accountability and
Transparency (OAT) at the U.S. Embassy in Baghdad, Iraq. On May 15,
2007, Complainant filed an EEO complaint alleging that the Agency
subjected him to a hostile work environment on the bases of age (60)
and in reprisal for prior protected EEO activity when he was subjected
to heightened scrutiny and criticism, false accusations, exclusion from
meetings and communications, and the removal of job responsibilities.
In support of his claim, Complainant identified the following incidents:
1. Complainant reported a security issue to the Regional Security Office
(RSO) which decided to take immediate action against a repeat offender.
Prior to the meeting with the RSO, Complainant’s supervisor (S1) began
berating Complainant for putting him in the position in the first place;
2. S1 refused to provide Complainant with a valid position description;
3. S1 questioned Complainant twice about why he went to the Central
Criminal Court of Iraq (CCCH) and what he was doing there. S1 told
Complainant to “stay in your lane” and that he did not want
Complainant to go to the CCCH;
4. S1 reprimanded Complainant for sending a team member a copy of a
draft Strategic Plan and told him that all future communications had to
be cleared by him beforehand;
5. Two suicide vests were found in a trash can near a training facility
where a training conference was held. S1 responded. “How do you
know that? You're always spreading rumors. I don't want you saying
things unless they are true;”
6. S1 accused Complainant of sowing dissent within the office and told
Complainant, “Maybe it's time you moved on.” Complainant politely
disagreed and S1 stated, "I know you don’t like my management style,
but I’m the boss;”
7. S1 told Complainant “I thought I told you to stay away from the
RSO.” S1 ignored the security implications and accused Complainant
of rumor-mongering.
8. S1 decided not to provide Complainant with a second, temporary
appointment following the expiration of his initial temporary appointment;
9. S1 refused to certify or submit a revised position description
for Complainant resulting in the denial of promotion and/or automatic
extension of his employment term;
10. The Chief Auditor launched into a tirade against Complainant for
talking to the RSO;
11. Complainant was excluded from various meetings and communications
on various unspecified dates;
12. Complainant was told to avoid weapons issues, armor vest issues,
truck issues, time sheet issues, Joint Anti-Corruption Council issues
and staffing issues. Additionally, Complainant was told not to share
public information with others in the Embassy, especially superiors;
13. Complainant’s request to transfer to a Business Development
Specialist position with Iraq's Provincial Reconstruction Teams was not
granted; and
14. Complainant was transferred from his position as Chief of Staff
in Iraq and asked to remain in Washington, D.C. through the end of his
employment term.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. After both parties submitted
motions for a decision without a hearing, the AJ assigned to the case
issued a decision without a hearing on September 30, 2008.
Initially, the AJ found that despite Complainant’s contentions,
a supplemental investigation was not warranted as Complainant failed
to establish that the Agency falsified or tampered with documentation
in the record. Additionally, the AJ denied Complainant’s requests
for sanctions, remedies, or other actions deemed appropriate as to the
Agency’s processing of his formal complaint.
Next, the AJ found that Complainant had not demonstrated a prima facie
case of discriminatory harassment based on age and reprisal because
Complainant failed to demonstrate that he was subjected to objectively
unreasonable behavior. Additionally, the AJ found that Complainant had
not alleged facts, which if proven true, would create an inference that
the Agency’s actions were based on Complainant’s age or his prior
protected activity. Specifically, Complainant alleged that he revised
his position description at S1’s request and expected that he would
have a different role within the Agency, but received no response.
Complainant further alleged that he did not receive a promotion as a
result of S1’s inaction. Complainant alleges that two co-workers also
submitted revised position descriptions and were promoted. The AJ found
that the identified comparators were not were not similarly situated to
Complainant. The first comparator worked as an attorney and was promoted
to a position which required the incumbent to possess a legal background.
Complainant’s position was principally a support or administrative
position which did not require a legal background. Additionally,
the second comparator was older than Complainant. Accordingly, the
AJ found that Complainant had not alleged facts creating an inference
of discrimination.
Complainant further alleged that S1 decided not to extend his initial
temporary appointment as Chief of Staff based on discrimination.
S1 stated that Complainant’s position was being phased out as part
of a reduction-in-force in which the office was being reduced from 28
employees to seven or eight which were not enough to warrant a Chief
of Staff. Complainant also alleged that he was not allowed to transfer
to a Business Development Specialist position with Iraq's Provincial
Reconstruction Teams during June 2007. The AJ determined that Complainant
had not offered any evidence which created an inference that he was not
allowed to transfer based on his age or prior protected EEO activity.
As to the remaining issues, the AJ found that the alleged conduct did
not constitute a hostile work environment; rather, the conduct was
representative of the typical conflicts that occasionally exist between
managers and subordinates. Assuming that the conduct rose to the level
of constituting a hostile work environment, the AJ found that Complainant
had not alleged specific facts establishing that the Agency’s actions
were based on Complainant’s protected classes. As a result, the AJ
held that Complainant had not been discriminated against or subjected to
a hostile work environment as alleged. The Agency subsequently issued
a final order adopting the AJ’s decision.
On appeal, Complainant argues that the AJ ignored and disregarded
his arguments and genuine disputes of material facts. Additionally,
Complainant contends that the ROI is incomplete and not fully developed.
Further, Complainant alleges that Agency officials provided inconsistent
and contradictory statements. Finally, Complainant contends that he has
provided sufficient evidence supporting his complaint. Accordingly,
Complainant requests that the Commission reverse the final order.
The Agency requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Decision Without A Hearing
The Commission 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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, “there is a need for strident
cross-examination and summary judgment on such evidence is improper.”
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
Upon review of the record, the Commission determines 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 Commission concludes that, even assuming
all facts in favor of Complainant, a reasonable fact finder could not
find in his favor, as explained below. Therefore, no genuine issues of
material fact exist. Additionally, the Commission is not persuaded by
Complainant’s appellate arguments that the ROI was incomplete and not
fully developed. After reviewing the record, the investigation contained
the necessary information for Complainant’s case to proceed and for the
AJ to make a decision. Under these circumstances, the Commission finds
that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
The Commission notes that a claim of disparate treatment is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to claims (2) and (9), S1 asserted that he did not have authority
to approve position descriptions or promotions as these matters were
typically approved by Human Resources in Washington, D.C. ROI, S1’s
Aff., at 12, 15. Regarding claim (4), S1 affirmed that the identified
employee was not a member of the OAT staff and that it was Agency policy
for documents to be cleared before being sent out to other offices
to maintain a sense of organization and flow of correct information.
Id. at 4.
In regard to claim (8), S1 maintained that Complainant’s position was
being phased out as part of a reduction-in-force after the number of
positions with OAT was reduced to seven or eight. ROI, S1’s Aff.,
at 12. As a result, there was no longer a need for a Chief of Staff.
Id. As to claim (11), S1 averred that meetings were held on a regular
schedule and Complainant was often nowhere to be found. Id. at 10.
Further, S1 added that Complainant rarely left word of where he was or
where he was going and was very secretive about his whereabouts. Id.
S1 stated that he often had to call Complainant to remind him to show
up at meetings. Id.
Regarding claim (13), the Human Resources Officer (HRO) affirmed that
she did not know and had no way of knowing if Complainant applied for a
transfer, but if he did apply and did not receive a response, it would
have been because he did not meet the mandatory requirements and/or
required score. ROI, HRO’s Aff., at 3-4. Further, HRO added that if
Complainant was not aware of the status of his request, he could have
asked anyone in the Agency’s Human Resources Office to check the status
for him. Id. at 5. Finally, as to claim (14), Complainant’s interim
supervisor (S2) stated that on September 13, 2007, the Agency decided
that Complainant’s services through the end of his employment contract
would be better utilized in Washington, D.C. ROI, S2’s Aff., at 3.
S2 added that Complainant’s contract provided for such flexibility.
Id. at 4.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec'y Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the evidence
in the light most favorable to Complainant, the Commission finds that
Complainant has not shown that any of the Agency’s actions were based
on discriminatory animus or that the reasons articulated by the Agency
for its actions were mere pretext to hide unlawful discrimination.
Further, Complainant’s arguments on
appeal are insufficient to create a dispute of material fact. As a
result, the Commission finds that Complainant has failed to show that
he discriminated against as alleged.
Hostile Work Environment
The Commission notes that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability, religion or prior EEO activity is unlawful, if it is
sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC
Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d
1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a
working environment is hostile, factors to consider are the frequency
of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes
with an employee's work performance. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) he belongs to a statutorily protected class: (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on her statutorily protected class; (4) the harassment affected
a term or condition of employment and or had the purpose or effect of
unreasonably interfering with the work environment and or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
In the instant case, the Commission finds that the AJ’s determination
that Complainant failed to establish that she was subjected to a hostile
work environment is supported by the record. Complainant has not shown
that he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving his protected classes, or the harassment
complained of was based on his statutorily protected classes. Further,
Complainant has not shown that the purported harassment had the purpose
or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment.
While Complainant has cited various incidents where Agency management
took actions that were either adverse or disruptive to him, the Commission
finds that Complainant fails to show that these incidents were the result
of unlawful discrimination. In so finding, the Commission notes that
EEO laws are not a civility code. Rather, they forbid “only behavior
so objectively
offensive as to alter the conditions of the victim's employment.” Oncale
v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Accordingly,
the Commission finds no reason to disturb the AJ’s issuance of a
decision without a hearing.
CONCLUSION
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 issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Nov. 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 12, 2011
Date
2
0120090574
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120090574