0120102424
07-19-2011
Prince Johnson, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Prince Johnson,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120102424
Hearing No. 570-2007-00894X
Agency No. 0711026
DECISION
On May 12, 2010, Complainant filed a timely appeal with this Commission
from the Administrative Judge’s (AJ) decision dated March 3, 2010,
dismissing his complaint of unlawful 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 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..
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Veterans Employment Specialist at the Agency’s Veterans Employment and
Training Service (VETS) Operations and Program facility in Washington, DC.
On December 29, 2006, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(African-American), sex (male), color (Black), and disability (fractured
femur) when:
1) The Agency failed to place Complainant in a career-conditional
appointment.
2) The Agency verbally advised Complainant to resign.
3) The Agency failed to place Complainant on performance standards before
terminating him.
4) The Agency placed false statements in Complainant’s termination
letter.
5) The Agency failed to provide Complainant with training opportunities
that were made available to other employees.
6) The Agency failed to allow Complainant to accrue credit hours.
7) The Agency notified Complainant in the termination letter that he
was being “graded” by other VETS employees.
8) Complainant’s co-worker (Co-Worker 1) and Supervisor subjected him
to racial harassment.
9) Complainant’s Co-worker 1 and Supervisor criticized his work
assignments.
10) The Agency alleged that Complainant was not a “manageable”
employee.
11) The Agency terminated him as a VETS employee, effective November
11, 2006.
The Director of Operations for the VETS office hired Complainant and he
began work in April 2006. During the interview, which was conducted
by the Supervisor, she informed Complainant that the job consisted
of assisting Co-worker 1 with the development and modification of
Excel spreadsheets. Complainant indicated that he had experience with
Excel. However, in his first month at the office, Co-worker 1 informed the
Supervisor that Complainant’s spreadsheets had many errors and that he
was defensive about criticism of his work. According to her affidavit,
the Supervisor also noticed Complainant’s errors and defensive attitude.
The Supervisor also allegedly noticed that Complainant was working more
than a forty-hour week and was thus accruing credit hours. Her affidavit
states that she told Complainant that she did not want him staying late
in the office because no one would be able to assist him if necessary.
Co-worker 1 was allowed to accrue credit time.
According to the record, the Supervisor and the Director of Operations
decided that Complainant needed basic Excel training and directed him
to find a suitable class to take. Complainant apparently believed
he was proficient in basic Excel and wanted to take an advanced or
intermediate class. This request was refused by the Supervisor, who
told him to find a basic class. Complainant alleges that Supervisor
was rude to him during these encounters, while Supervisor alleges that
Complainant was defensive about his computer skills. Complainant also
alleges that white employees were allowed to take higher level classes.
The Agency argues that this was because those employees had higher Excel
skills than Complainant.
Complainant was also scheduled to attend a National Veterans’ Training
Institute (NVTI) class in July 2006. However, his Supervisor cancelled
his trip, stating that resources would be better spent if Complainant
spent additional time at a grants conference instead. Complainant finds
it contradictory that she also claimed lack of resources prevented
Complainant from attending the conference. Other white employees attended
the NVTI class.
In June 2006, the Supervisor went on leave for military reserve duty.
The Director of Operations received an email from Human Resources
that implied that Complainant would not be paid unless he became a
career-conditional employee. However, once Supervisor became aware of
this change, she recommended, based on Complainant’s alleged performance
issues, that his career-conditional status should be cancelled and his
position instead made a one-year temporary appointment. Complainant also
argues that if management had issues with his performance, they should
have informed him and placed him on a performance plan.
On October 6, 2006, the Supervisor and the Director of Operations met
and agreed to terminate Complainant based on his performance failures
and attitude. On October 10, 2006, Complainant received a letter from
the Director of Operations that stated that his termination will be
effective November 11, 2006, based on failing to satisfactorily complete
assignments and on his “argumentative response and demeanor.” The
Report of Investigation, however, contains some of Complainant’s other
co-workers’ affidavits, stating that Complainant had a pleasant demeanor
and was never hostile towards management officials. The Director of
Operations also vacillated on the question of Complainant’s attitude,
stating in different affidavits that Complainant was a “good guy”
with a “favorable nature” but simply could not do the work,
while in another affidavit stating that he had personally witnessed
Complainant’s bad attitude and that Complainant had been argumentative
with him. When asked about this contradiction during the investigation,
he replied, in an affidavit of August 10, 2007, that he did not think
Complainant was a bad person and generally had a good nature, but that
Complainant did have an “occasional argumentative attitude.”
On appeal, Complainant reiterates numerous instances of alleged
harassment. For example, he alleges that Co-worker 1 shouted at him,
talked down to him and told him about an instance, during a conversation
about their military service, in which some soldiers had filed an
EEO complaint against him after he asked them to take out some trash.
Co-worker 1 allegedly referred to these soldiers as “lazy.” The
ROI shows that Co-worker 1 denies purposefully talking down to or
shouting at Complainant, and explained that he has a hearing problem
that causes him to talk loudly. Complainant also alleges that his
Supervisor shouted at him on many occasions and told him that they
just did not “click” with each other. An affidavit from another
of Complainant’s co-workers reveals that Supervisor is known for her
angry outbursts and has shouted at many employees. Complainant also
alleges that he was called “useless” and “stupid” by Supervisor
and Co-worker 1. Complainant also feels that criticisms of his work were
done in order to harass him. Complainant alleged that on April 13, 2006,
his Supervisor saw that he was not using his cane and indicated that he
should use his cane unless he produced a note from a doctor. On April
20, 2006, Supervisor allegedly reminded him to use the cane again.
Over Complainant's objections, the AJ assigned to the case granted the
Agency’s February 14, 2008, motion for a decision without a hearing and
issued a decision without a hearing on March 3, 2010. When the Agency
failed to issue a final order within forty days of receipt of the AJ’s
decision, the AJ’s decision finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged became the
Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).
CONTENTIONS ON APPEAL
Complainant contends on appeal that the Agency was not entitled to
summary judgment because there are genuine issues of material fact still
in dispute. The Agency argues on appeal that the decision of the AJ
was correct.
ANALYSIS AND FINDINGS
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 an administrative judge’s “decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will
be reviewed de novo”). 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).
To establish a prima facie case of hostile environment harassment,
petitioner must show the existence of four elements: (1) she is a member
of a statutorily protected class; (2) she 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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. §1604.11.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
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 pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
As a preliminary matter, we find that claims 7 and 9 were suitable for
summary judgment because Complainant has produced no evidence that they
occurred and thus there is no genuine issue of material fact regarding
Complainant’s prima facie case for these claims. The termination letter
does not state in any part that Complainant had been graded by other VETS
personnel, nor does it make any allegation that he was unmanageable. These
claims appear to be subjective inferences drawn by Complainant.
In terms of Complainant’s harassment claims, we find that Complainant
has failed to show a genuine issue of material fact regarding his prima
facie case because he has not presented evidence that would allow a
reasonable finder of fact to hold that his treatment was due to his race,
color, sex or disability. In Ortega v. United States Postal Service,
the Commission held that even assuming management behavior such as
shouting in a threatening way at the complainant, taking him off his
cases, accusing him of improper behavior and revising his reports rose
to the level of severe or pervasive conduct, there was no evidence
that this treatment was causally linked to a discriminatory basis.
See Ortega v. United States Postal Service, EEOC Appeal No. 01995343 (May
3, 2001). As the AJ correctly held, even abusive speech, without a link
to Complainant’s protected classes, is not actionable under Title VII.
See Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008). Although Complainant
on appeal makes much of the fact that Co-worker 1 shared with Complainant
his opinion of the soldiers who previously filed an EEO complaint against
him, this is not a case in which the term “lazy” was accompanied
by racial language or was even directed at the Complainant himself.
See Padilla v. United States Postal Service, EEOC Appeal No. 0120063761
(April 8, 2008) (finding the Agency was liable for harassment when a
supervisor called the complainant a “lazy Mexican” and a “lazy
spic”); Pernice v. Department of Justice, EEOC Appeal No. 1A00751
(April 19, 200) (finding a supervisor did not have discriminatory animus
when he stated that he did not promote the complainant because he did
not want lazy employees). Therefore, even viewing the evidence in the
light most favorable to Complainant, we find that the Agency was entitled
to judgment as a matter of law on Complainant’s harassment claims.
In terms of Complainant’s claims of disparate treatment, we find that
assuming arguendo he made out a prima facie case, he has not presented
sufficient evidence that the Agency’s legitimate, non-discriminatory
reasons for its actions were pretextual. Although Complainant has
presented evidence that some of his coworkers do not agree that he was
ever argumentative or defensive, he has not created a genuine issue
of material fact about his ability to perform the necessary job tasks,
which was also a given reason for his termination. Additionally, he has
not countered the Agency’s arguments that the non-minority employees
who took different Excel classes had more proficiency with the program,
that it was an inefficient use of resources for him to attend the
NVIT training, that it would have not been useful for Complainant to
work in excess of a normal workweek, and that he was removed from the
career-conditional track due to an error by the Director of Operations.
Although Complainant may disagree with the Agency and his supervisors
about their decisions, he has not presented objective evidence that
would create an issue of pretext.
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 finding of no discrimination was proper and the Agency’s final
order 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
July 19, 2011
__________________
Date
2
0120102424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102424