0120100982
08-21-2012
Phillip Torrence, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Phillip Torrence,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100982
Hearing No. 530-2008-00028X
Agency No. 200H-0561-2006103448
DECISION
On December 22, 2009, Complainant filed an appeal from the Agency's December 2, 2009, 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether an EEOC Administrative Judge err in issuing summary judgment in favor of the Agency, which found that the Agency did not discriminate against Complainant.
BACKGROUND
Previous EEO Complaint
In 2003, Complainant was a Christian minister and a Supervisory Police Officer, GS-7, at the Agency's New Jersey Healthcare System, East Orange campus. In May 2003, he claimed that the Agency discriminated against him on the bases of religion (Pentecostal Christian) and age when, beginning in 2001, the Agency denied, in part, his requests to take Sundays off to attend church services. In November 2004, the Agency issued a final agency decision on the matter. The Agency found that it had accommodated Complainant's religious needs by having him work on Sunday afternoons, thereby allowing him to attend Sunday morning church services.
Request to Return to Supervisory Position
In 2005, Complainant was downgraded from Supervisory Police Officer, GS-7, to Police Officer, GS-6, because of health issues. When his health improved, he requested in August 2006 to return to his former Supervisory Police Officer position. But the Agency declined to automatically reinstate him because his verbal request did not adhere to the Agency's official hiring process for Supervisory Police Officers. This process required all interested employees to complete and submit written applications. Complainant had multiple opportunities to apply for vacant supervisory positions, but he never submitted a written application.
Follow-up Psychological Examination
All Agency police officers must undergo annual physical and psychological examinations. In 2006, Complainant underwent an initial psychological examination, and then he had to take a follow-up psychological examination. Two other officers over the age of 40 also had to take follow-up examinations that year. Complainant believed that these follow-up examinations were attempts by management to get rid of the three oldest police officers on the force, by requiring them to take additional examinations, thereby increasing their chances of failing these tests.
Request for Sundays Off
In the fall of 2006, Complainant reported to work on Sundays at 2:00 pm. Complainant verbally requested that his schedule be changed so that he would have Sundays off. His supervisor initially denied his requests because Complainant was on a rotation shift. But then on September 28, 2006, Complainant was allowed to have Sundays off. This arrangement persisted until Complainant retired in May 2007.
EEO Complaint
On September 22, 2006, Complainant filed an EEO complaint, alleging that the Agency discriminated against him on the bases of religion (Pentecostal Christian), age (63), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when:
1. on July 12, 2006, he was ordered to undergo a follow-up psychological examination;1
2. the Agency refused to restore him to his previous position as a Supervisory Police Officer after his health returned;
3. in August and September 2006, the Agency did not allow him to take Sundays off as a Christian minister.
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 April 17, 2009, motion for a decision without a hearing and issued a decision without a hearing on September 24, 2009.
AJ's Summary Judgment Decision
Regarding the follow-up psychological examination, the AJ found that Complainant failed to establish a prima facie case of discrimination. But even if he had, the AJ determined that Complainant could not establish pretext. Based on the declaration of the psychologist who administered Complainant's follow-up psychological examination, the AJ found that management officials played no role in determining which police officers had to undergo follow-up psychological evaluations. Rather, the doctors who performed the initial psychological examinations were the individuals who determined whether follow-up psychological examinations were warranted. There was no evidence in the record that those doctors relied on Complainant's religion, age, or prior EEO activity in deciding that Complainant should undergo a follow-up psychological examination.
Regarding the request to have Sundays off, the AJ found that the existing arrangement, in which Complainant reported to work at 2:00 pm on Sundays, gave Complainant sufficient time to conduct his morning religious services. The AJ noted that Complainant did not submit any information to demonstrate that his religion or ministerial duties required him to participate in activities on Sunday afternoons or evenings. And because the Agency eventually granted Complainant's request in late September 2006, the AJ found that Complainant failed to demonstrate that the Agency's initial denial was motivated by anything other than scheduling concerns.
As for the Agency's refusal to return Complainant to the position of Supervisory Police Officer, the AJ found no evidence of discrimination because the Agency treated Complainant the same as all other employees, by requiring him to submit an application for promotion, just like everyone else who desired to become a supervisor. Complainant offered no evidence to show that the Agency's refusal to promote him to the supervisory position was due to anything other than the Agency's strict adherence to this policy.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing summary judgment because material facts were in dispute.
* Complainant averred that the psychologist who administered the follow-up psychological examination told him that management had requested that he undergo this examination because he had body odor. In contrast, the psychologist stated in his declaration that the facility that performed the initial psychological examination had requested the follow-up examination; management had not initiated the follow-up medical examination; and the reasons for the follow-up examination were "not primarily or exclusively for the reasons that complainant indicated."
* Complainant averred that he voluntarily took a downgrade from his position as Supervisory Police Officer because of illness. His supervisory position was then filled by a person younger than 40. "Complainant believes that he was not restored to his supervisory position because management wanted to 'force him out' because of his age and previous EEO activity.
* Complainant disputes the precise dates that he began requesting Sundays off and the Agency began allowing him to take Sundays off.
ANALYSIS AND FINDINGS
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).
Appropriateness of Issuing Summary Judgment Decision
After a careful review, we determine that the AJ did not err in issuing summary judgment because there were no genuine issues of material fact in dispute, and the record was adequately developed for summary disposition.
For the follow-up examination issue, the parties agree that Complainant was subjected to an additional psychological examination, and one of the purported reasons for this examination was because Complainant had body order problems. While there is a dispute over who raised the body order issue (the doctor who previously examined Complainant or Complainant's supervisors), the identity of this person is not material. Our analysis of whether body order is such a deficient justification for a follow-up medical examination that it constitutes pretext to mask a discriminatory or retaliatory motive would be the same, whether it was the doctor or Complainant's supervisors who initially proffered this reason.
As for not allowing Complainant to return to his supervisory position, the parties agree that Complainant was voluntarily downgraded to a Police Officer due to health issues. There is also no dispute that management articulated its reason for not returning Complainant to his former position: he needed to submit a written application for vacated supervisory positions, just like other employees. Complainant's stated belief that this reason is false, that management wanted to "force him out" because of his age and previous EEO activity, is not in itself a fact that is in dispute. Rather, it is an assertion of Complainant's belief. Mere allegations, speculations, and conclusory statements are, without more, insufficient to create a genuine issue of material fact.
Finally, with his religious accommodation claim, we find no dispute between the parties about the material facts: (1) Complainant requested Sundays off because he was a Christian minister; (2) the Agency did not initially give him Sundays off, due to the scheduling issues of Complainant's rotational shift; (3) later, the Agency did allow Complainant to take Sundays off. Complainant's dispute over the exact time when the Agency began allowing him to take Sundays off (Complainant claims it started in August 2006 while his supervisor testified it was October 2006) is not a dispute over a material fact. What is material is the reasons why the Agency did not initially allow Complainant to have Sundays off.
We turn now to the merits of the complaint.
To prevail in a disparate treatment claim, Complainant generally must first establish a prima facie case of discrimination by demonstrating that he (1) is a member of a protected class, (2) was subjected to adverse treatment, and (3) was treated differently than otherwise similarly situated employees outside of the protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
If Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate legitimate, non-discriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256; Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We will assume, for purposes of this decision, that Complainant established prima facie cases of discrimination. Upon review, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The psychologist who administered the follow-up psychological examination stated in his declaration that Complainant underwent a follow-up psychological examination in 2006, in part, because of an alleged body odor problem. Complainant's supervisor explained that the reason he did not initially allow Complainant to take Sundays completely off was because (1) Complainant was on a rotational shift; and (2) the supervisor thought that Complainant's religious needs were already being accommodated by allowing him to attend Sunday morning church services. Finally, the supervisor explained that Complainant was not automatically returned to his former supervisory position because he did not comply with the Agency's policy of submitting a written application.
We find that there is insufficient in the record to demonstrate that the Agency's reasons are a pretext for discrimination. Complainant maintains that managers wanted to remove the oldest police officers from the workforce, therefore they subjected older police officers like Complainant to additional medical examinations and refused to return him to a supervisory position. But we find this assertion to be speculative and unsupported by any evidence in the record. An employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. Although Complainant may disagree with the stated reasons offered by management, i.e., body odor should not justify a psychological examination; Complainant's rotation shift should not have prevented management from immediately allowing him to have Sundays off; management should have allowed him to return to his supervisory position, or he may feel that management acted unwisely or erroneously, this is not sufficient to demonstrate pretext. Therefore, we find that Complainant did not establish discrimination on the bases alleged.
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, adopting the AJ's summary judgment decision, finding no discrimination.
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
__8/21/12________________
Date
1 We note that Complainant is not raising a claim that the Agency violated the Rehabilitation Act by requiring that he undergo a disability-related medical examination during employment.
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0120100982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8 0120100982