0120111509
08-01-2013
John Hartley, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
John Hartley,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120111509
Hearing No. 551-2010-00112X
Agency No. 200922461FAA06
DECISION
On January 18, 2011, Complainant filed an appeal from the Agency's final order received on January 10, 2011 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge properly issued a decision without a hearing finding that Complainant failed to meet his burden of proof to establish that the Agency discriminated against him (1) on the basis of race (Alaskan Native), color (brown), national origin (American/Alaskan Native), religion (Episcopalian), sex (male), or age (52) by subjecting him to a hostile work environment (harassment) or disparate treatment when it took him off a project assignment on August 1, 2008; or (2) on the basis of race, color, national origin, sex, age, or reprisal for prior EEO activity when it scheduled him to take a random drug test on September 5, 2008; or (3) on the basis of reprisal for EEO activity when the Agency threatened him with discipline and conducted an investigation for failure to follow time and attendance procedures on and after December 4, 2009.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Computer Specialist at the Agency's Federal Aviation Administration facility in Anchorage, Alaska. On April 7, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of "Issues Presented" above. 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 3, 2010, motion for a decision without a hearing and issued a decision on November 29, 2010. 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.
Undisputed Facts - AJ Decision
The AJ found the following undisputed facts in the record: In April 2008, Complainant's manager placed him on the Computer Aided Engineering Graphics (CAEG) team project. On August 1, 2008, one of the managers, outside Complainant's organization sent an e-mail to two managers complaining about personality conflicts with Complainant. The e-mail, accusing Complainant of having "an inappropriate personality" to work on the CAEG project and "continuously" referring to the visiting team as "the enemy," was forwarded to Complainant's manager (S1). Subsequently, a decision was made to remove Complainant from the team.
A later investigation found the e-mails complaining about Complainant's behavior were inaccurate. Complainant alleged that the e-mails were libelous and slanderous, and that it constituted sexual harassment because he once had a sexual relationship with the writer of the emails. On September 3, 2008, Complainant initiated an internal appeal of management's decision to remove him from the CAEG team with the FAA Accountability Board. Complainant informed his supervisors of the appeal.
On September 5, 2008, Complainant was notified that he was scheduled to submit to a drug test. Complainant objected, and after a Union objection on September 9, 2008, the Agency advised Complainant that he did not have to take the drug test. On October 27, 2008, S1 met with Complainant regarding his annual performance plan. Complainant believed that he was "grilled" and harassed during the meeting. On November 6, 2008, Complainant filed a union grievance alleging ongoing harassment by S1 arising out of the circumstances surrounding the August 1, 2008 email.
CONTENTIONS ON APPEAL
On appeal Complainant reiterates his arguments from his formal complaint that he was subjected to a hostile work environment and disparate treatment as a result of a failed sexual relationship with a co-worker.
STANDARD OF REVIEW
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 both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").
ANALYSIS AND FINDINGS
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.
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).
After a review of the record, we find 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 record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII or ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
We find that that Complainant established a prima facie case of discrimination based on race (Alaskan Native), color (brown), national origin (American/Alaskan Native), religion (Episcopalian), sex (male), age (52), and reprisal for prior EEO. However, we find that the Agency also articulated legitimate, non-discriminatory reasons for removing Complainant from the CAEG team; ordering Complainant to take a drug test; and notifying Complainant of potential discipline.
S1 acknowledged that after completing an investigation he discovered that the emails regarding Complainant's behavior on the CAEG team were inaccurate. However, he submits that at the time the decision was made to remove Complainant from the CAEG team, he was relying on these emails. The Agency argues, and we find it reasonable, that this mistaken reliance does not establish race, color, national origin, sex, or age discrimination. Additionally, once the emails were determined to be false, the Agency took steps to stop the author's conduct and there were no more emails. With respect to Complainant's allegation that the request for a drug test was retaliatory, we find that the Agency showed that this request was not discriminatory. The record reflects that in September 2008, the medical unit independently and randomly scheduled Complainant and two other co-workers for drug tests. There is nothing in the record that establishes that the timing was anything but purely coincidental.1 Regarding Complainant's allegation that S1's warning of potential discipline for violating time and attendance rules was retaliatory, the Agency submits that S1 was following proper procedures when he advised Complainant of the potential for discipline if time and attendance rules were violated. After a thorough investigation occurred, and no rules were found to have been violated, no discipline was issued.
At this point, the burden returns to Complainant to establish that the Agency's proffered explanation for its actions is merely a pretext for unlawful discrimination. We find, however, that Complainant has failed to present any persuasive evidence to establish that the Agency's articulated reasons for its action were a pretext for discrimination. Complainant offers nothing on appeal, nor is there evidence in the record to establish pretext.
Hostile Work Environment Claim
With respect to Complainant's allegation that he was subjected to a hostile work environment, we find that the Agency articulated legitimate, non-discriminatory reasons for each of the separate actions Complainant alleges created the hostile work environment, and that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that Complainant has not established that he was discriminated against as alleged. Accordingly, the Agency's final order adopting the AJ's decision is AFFIRMED.
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
___8/1/13_______________
Date
1 We note that, in addressing an AJ's issuance of summary judgment, a complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111509
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120111509