0120132566
10-06-2015
Joel P.1, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joel P.1,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132566
Hearing No. 430-2012-00100X
Agency No. 110025001989
DECISION
On June 19, 2013, Complainant filed an appeal from the Agency's May 6, 2013, 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. 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 Computer Specialist (Client Services Technician) at the Agency's Navy Exchange Services Command (NEXCOM) facility in Virginia Beach, Virginia.
On April 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and color (Black) when:
1. On December 3, 2010 Complainant was issued a Notice of Decision of Disciplinary Action suspending him for 30 days with pay;
2. During the week of December 6, 2010, Complainant was not interviewed for a Forecast Analyst position (Position); and
3. Between November 29 and December 3, 2010, Complainant was harassed by his Supervisor (S: Caucasian, white) and Manager (M: Caucasian, off-white).
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 3, 2013, motion for a decision without a hearing and issued a decision without a hearing on March 22, 2013. Specifically, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for issuing the 30-day suspension, namely that Complainant was suspended for inadvertently removing Agency property without authorization and providing false information during an investigation. The AJ further found that Complainant failed to show that the Agency's articulated reason was a pretext to mask intentional discrimination. The AJ further found that Complainant failed to establish a prima facie case of nonselection when he was not interviewed for the Position because the Responsible Management Official was unaware of Complainant's race or color and the ultimate selectee for the position was the same sex as Complainant. Finally, with regard to the harassment claim, the AJ found that the evidence did not show that the Agency's actions were based on Complainant's protected bases or that the actions complained of were sufficiently severe or pervasive to constitute harassment.
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
With regard to the 30-day suspension, the Notice of Decision of Disciplinary Action (Notice), signed by the Agency Senior Vice President Command Information Office (AVP: Caucasian, white), stated that the discipline was being imposed for "Failure to exercise prudent judgment by inadvertently removing NEXCOM property without authorization . . . [and for] Providing false information during an investigation." Report of Investigation (ROI) pp. 151-53. The Notice further detailed that, on the last day of a conference, Complainant, who along with a coworker had been sent to pick up and return Agency equipment, was seen on closed-circuit television placing a flower arrangement, four orchids in metal vases, and a carrier bag, into his car. The items were never returned to the Agency. With regard to the charge of providing false information, the Notice stated that during an internal Agency investigation, Complainant said that he "did not 'take/steal' any flowers or sodas. However, you also stated that you did bring back flowers . . .. Therefore, you did provide false information during your interview with [the investigator] when you told him that you did not take any flowers." Id. With regard to Complainant not being interviewed for the Position, the record shows that during his 30-days suspension, an email was received in Complainant's inbox inviting him to an interview scheduled on December 10, 2010. A subsequent email, dated December 10, states "cancelling this meeting, since you did not accept invitation."
The Agency having articulated legitimate non-discriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext for discrimination. See Burdine, 450 U.S. at 252-53. Complainant denies that he took any items or made any false statements. He contends that he and a coworker went to the conference center to help bring items back to the facility. Complainant maintains that:
The items were loaded in the van and we proceeded to return to NEXCOM. While driving back, it was noticed that some of the items belonging to [the Special Events Manager (SEM: Caucasian, olive)] had spilled over in the van. After arriving at headquarters, I parked in the loading area to unload the van. I rolled two carts containing everything that we brought back including soft drinks and damaged flowers that had spilled enroute from the Chesapeake Convention Center.
ROI, p. 149.
With regard to the allegation of making false statements, Complainant said "I was asked did I take any sodas and flowers. I responded no. I did not take/steal any items from the conference or to my car. I emphatically said 'No I did not take/steal any flowers or soda.' I did however, bring back a few flowers and sodas." Id. See also Fact Finding Conference Transcript, ROI, pp. 312-15. Upon further questioning of Complainant, the following exchange took place:
Q - Did you at any point -- do you recall where you threw the flowers out? You say you considered it trash.
A - Yes. I put them in a bag. I had two bags. I utilized the bag that I brought back from the conference. Like I said, some of the stuff that was at the conference, were some of the attendees -- you know, like she stated, some -- whatever, you know, some of the attendees, it was for them to take. They were - you know, it's theirs.
Q - Yes, sir. I understand that, but do you remember where you threw the flowers out?
A - I threw the flowers along with my trash and threw them in the trash can when I got home.
Q - So the bag was placed in your car?
A - Right. With my trash and I threw something away. Cleaning up -- I threw something in the trash can in the mailroom trying to clean the place up.
Q - But the flowers, what you considered trash, was [sic] placed in your car?
A - It could have been one of the containers that held the flowers. I did throw something away in there.
Q - I apologize to you, ma'am [sic]. I think we are sort of talking over each other. I just wanted to be clear.
A - I understand.
Q - The flowers you said you placed it in your car. You threw it away at home?
A - I put the trash --
Q - I know you're calling it trash, but are we referring to the flowers now?
A - Yes. I considered it trash. I put it with my trash into my containers and, you know, stuff I didn't eat or shared with anybody that day. I put it there with the bags that was [sic] going out with . . .
Q - You were going home with?
A - Yes. To the end of my workday. Yes. After I pulled around to, you know, retrieve stuff out of the mailroom
Id., 377-79.
During the internal investigation into the incident, SEM said that the flowers were never returned. See ROI, p. 158. AVP averred that Complainant said "that he did not take any flowers, knows nothing about the flowers. He emphatically states there was nothing known about the flowers, but yet video surveillance shows him leaving property with flowers. That was what was identified as providing false information during an investigation." ROI, p. 387. Complainant averred that in 2000 another coworker "brought back over 50 batteries" from a conference and was not disciplined. ROI, p. 316. The AJ, correctly pointed out, however, that according to Complainant's own statements, the coworker in question did not work for the same management official as did Complainant. See id., pp. 316-18. With regard to Complainant not being interviewed for the Position, Complainant has not identified any other similarly situated coworker who failed to respond to an email invitation to be interviewed but was nevertheless interviewed. While Complainant maintains that Agency officials could have contacted him at home to let him know of the email invitation, the fact that he was not contacted at home is not evidence of discrimination based on race, color, or sex. We therefore find that the AJ's findings are supported by substantial evidence and we discern no basis to disturb the AJ's findings.
With regard to Complainant's claim of harassment, we note that 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. Complainant alleges that, while attending offsite training, his training was interrupted three times by calls from management officials, twice to ask him why he was late for training, and once to tell him to attend a disciplinary meeting. In the instant case we find that such actions are insufficiently severe to constitute harassment.
Given the above, we find that Complainant has not shown the presence of a material issue of fact, nor has he met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were a mere pretext to mask intentional discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's findings are supported by substantial evidence and we find that Complainant has established that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 6, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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