0120110667
09-07-2012
Michael P. Clarken, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.
Michael P. Clarken,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120110667
Hearing No. 540-2009-00032X
Agency No. 07-63-00203
DECISION
On November 12, 2010, Complainant filed an appeal from the Agency's October 11, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to show that he was discriminated against as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination on the bases of disability and reprisal when he was not selected for the position of Telephone Interviewer at the Tucson Telephone Center.
BACKGROUND
At the time of events giving rise to this complaint, on or around January 17, 2007, Complainant applied for the position of Telephone Interviewer, GS-03 at the Agency's Tucson Telephone Center, National Processing Center in Tucson, Arizona. Eighty-seven applicants were initially considered eligible for the position based on their applications, their performance on a written test, and their performance at an interview. Complainant was ranked number one on the list of eligibles. Once the eligibility list was compiled, the Chief, Tucson Telephone Center (the Chief), who did not test or interview the applicants, reviewed the list in order to make her selections. She recognized Complainant's name because he had previously worked as a telephone interviewer for the Tucson Telephone Center from April 12, 2004, until July 12, 2004, when his temporary appointment was allowed to expire. During Complainant's time on the job, several incidents occurred which lead to his temporary position not being extended. For example, on April 17, 2004 during Complainant's training, the Trainer/Supervisor stated that he had been disruptive in class by not paying attention and had made rude comments. She stated that she had to stop the class on several occasions in an effort to stop this behavior. Two females employees in the class complained to the trainer that Complainant had called one of them a jerk on two separate occasions during the training. One of the female employees was so upset; she told the trainer that she considered leaving. After being told about these complaints, the trainer asked to speak to Complainant in private. He was told what had been reported and he admitted that he had called the woman a jerk saying that these women had been abusing him by "passively aggressively" taking up more space at the training table. The trainer explained to Complainant that this was inappropriate behavior and be needed to stop immediately. Complainant thereafter, according to the trainer, leaned in very close and whispered, "Should I have called her an asshole instead since jerk is not allowed?" At this point the trainer felt very uncomfortable being alone with him and stopped the conversation. She asked another supervisor, to be a witness to the remainder of the meeting. When Complainant repeated the term "asshole" to the supervisor, he told Complainant that this was inappropriate language and behavior and instructed him to stop immediately.
Further, on May 10th, Complainant had a verbal altercation with a Computer Specialist. The Computer Specialist was performing maintenance on some of the production floor computers, and noticed Complainant disconnecting the keyboard and running a cable underneath the desktop. The Computer Specialist stopped Complainant and explained the safety reasons for why the cables had to be kept topside. According to the Computer Specialist, Complainant gave him an angry stare and then stated "a new level of micro-management."
It was also noted that Complainant was performing at a below fully satisfactory level despite being given additional training. At the time his appointment expired, Complainant was still on initial monitoring. To move to a systematic status, an interviewer had to have three fully successful monitoring sessions in a row. Complainant had five monitoring sessions in a row that fell below fully successful. He would not read the scripts on the screens as worded, would modify the questions to his liking, or completely skip over the questions all together. He would tell the respondents that the questions were ridiculous or that they might seem superfluous. He was given feedback on numerous occasions but he was not receptive to any type of criticism of his performance and would not make the adjustments necessary to perform his duties in an acceptable manner.
On July 2, 2004, while Complainant was on an interview, he began having problems navigating thru the survey instrument, and began to swear. The Operations Specialist immediately rushed to the production floor but by the time she reached Complainant's work station, the respondent had hung up. Complainant was extremely agitated. He was told that there were specific guidelines from the sponsors as to how to conduct telephone interviews but he refused to follow them. Complainant was also warned that there were strict guidelines on how a Census Bureau employee should behave but his behavior did not change. It was felt by some that Complainant seemed to have a problem with females in supervisory positions, and he didn't want anyone, especially a female, to give him instructions. By the time Complainant left the Agency, the Chief was aware of several female supervisors who had complained that they were fearful of Complainant because of how easily agitated he would become. Accordingly, Complainant's temporary appointment was allowed to expire.
Once the Chief saw Complainant's name listed as number one on the 2007 list of eligibles, she became concerned because of his previous 90 day tenure with the Agency. She decided not to hire him based on his prior performance and conduct. Therefore, on March 28, 2007, the Chief completed and forwarded to Human Resources a Request for Passover of a Preference Eligible. Complainant was not selected for the job.
Complainant filed an EEO complaint on October 3, 2007, alleging that the Agency discriminated against him on the bases of disability (hearing impairment) and reprisal for prior protected EEO activity when he was not selected for the Telephone Interviewer position.
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 9, 2009, motion for a decision without a hearing and issued a decision without a hearing on September 27, 2010. The AJ found that, assuming arguendo, Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the Chief did not select Complainant because she determined that he was not suitable for telephone interviewing work based on his previous conduct and work performance with the Agency. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination. 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.
CONTENTION ON APPEAL
On appeal, Complainant maintains that the AJ erred when she found that no material facts were at issue. He contends that the AJ failed to recognize that he was the top listed candidate for the position. Further, he maintains that during his exit interview from his past position with the Agency he was told that his appointment was simply expiring and that he would be able to apply to other job opportunities. Complainant also maintains that he has never met the Chief and therefore questions how she was aware of his prior performance and conduct.
In response, the Agency argues that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
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").
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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ properly issued a decision without a hearing as there are no material facts at issue in this case. The Commission also finds that Complainant failed to prove he was subjected to discrimination because even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that even though Complainant was ranked number one on the list of eligibles, his prior work performance and conduct prohibited him from being rehired. Management noted that during Complainant's tenure with the Agency, he used inappropriate language, insulted coworkers, and disrupted a training session. He was told that his behavior was inappropriate yet he continued his behavior. Further, it was noted that the quality and quantity of his interviewing skills failed to improve to an acceptable level despite ongoing counseling and instruction. Additionally, he was warned not to use words that were not in the script and yet he continued to do so. He exchanged angry words with a Computer Specialist regarding cables on his computer and was thought to be hostile toward female supervisors. The Agency indicated that as a result of his prior performance and conduct he was not invited to come back. We find that other than Complainant's conclusory statement that he was not told about any work problems when his appointment was allowed to expire, he has not provided any evidence to support this claim. The Agency however, has documented its dissatisfaction and repeated counseling of Complainant with regard to his prior appointment. As such, we find Complainant's argument that he was not told about any work problems disingenuous.1 We find that the record supports the Agency's reason for not hiring him and we note that Complainant has not provided any evidence which suggests that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order which found that Complainant failed to demonstrate that he was discriminated against as alleged.
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
__9/7/12________________
Date
1 We note that, in addressing an Administrative Judge's issuance of a decision without a hearing, a complainant's opposition must consist of more than mere unsupported allegations or denials but 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.
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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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