0120152683
11-16-2017
Ralph E.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ralph E.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120152683
Hearing No. 510-2014-00107X
Agency No. DIA-2013-00043
DECISION
On August 10, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the EEOC's Administrative Judge's (AJ) decision 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. For the following reasons, the Commission AFFIRMS the AJ's finding without a hearing that Complainant did not demonstrate that he was subjected to discrimination, reprisal, or harassment.
ISSUES PRESENTED
Whether the decision to issue a decision without a hearing was appropriate; and whether the AJ correctly found that Complainant was not subjected to discrimination, reprisal, or harassment with regard to a number of work place issues.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Executive Officer at the Agency's Requirements and Resources Division in Jacksonville, Florida. On April 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when:
a. On several occasions from January 2009 until present, Responsible Management Official (S1), made inappropriate racial comments and negative references about
Complainant being from Alabama;
b. On several occasions from January 2009 until March 2013, S1 called Complainant disrespectful when Complainant disagreed with him during office meetings, but he never addressed white supervisors that disagreed with him;
c. On a quarterly basis from December 2010 until March I, 2013, S1 neglected to publicly recognize Complainant during Division All-Hands Ceremonies;
d. In March 2010, S1 failed to act on any promotion actions regarding Complainant's billet, but he processed white employees' promotion actions;
e. On August 11, 2012, S1 denied Complainant overtime;
f. On October 26, 2011, S1 did not introduce Complainant to the incoming Deputy Director of Intelligence, but he introduced all of the white employees;
g. On December 8, 2011, S1 impeded Complainant's promotion opportunity through the DCIPS appeal process;
h. On September 28, 2012, the Agency downgraded Complainant's 2012 annual performance rating;
i. On October 3, 2012, there was an unsanctioned survey conducted on the Administrative Staff to include Complainant, used to justify low performance ratings in the Branch;
j. On October 26, 2012, Complainant discovered that S1 informed Complainant's coworkers to bypass Complainant on all issues;
k. On November 7, 2012, S1 held Complainant responsible for others mistakes;
l. On November 9, 2012, during a staff meeting, S1 interrupted Complainant while he was speaking, but allowed everyone else to speak without interruption;
m. On February 1, 2013, following a discussion between S1 and Complainant regarding conference room access, S1 stated to the Director, Requirements & Resources Division, that he believed Complainant was going to attack him.
n. On February 27, 2013 and March 5, 2013, S1 threatened Complainant and told
Complainant if he entered the SCIF before his duty hours he would limit his SCIF access, S1 threatened Complainant with disciplinary action if he checked the access policy with the SSO;
o. On March 5, 8, 13, and 27, 2013, S1 threatened Complainant with disciplinary action without reason;
p. On March 8, 13 and 27, 2013, S1 had HR personnel in attendance at a confidential one-on-one meetings;
q. On March 13, 2013, S1 issued Complainant a Letter of Reprimand; and
r. On March 29, 2013, the Agency subjected Complainant to a management directed reassignment resulting in a loss of status and authority,
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 Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 5, 2014, motion for a decision without a hearing and issued a decision without a hearing on June 15, 2015. Complainant alleged that he was subjected to disparate treatment as compared to his white coworkers with respect to promotions, overtime and performance appraisals. The AJ found that Complainant's allegations particularly those which involved the purported failure to promote, denial of overtime, and the downgrading of a 2012 performance rating were all discrete adverse actions and Complainant should have sought EEO counseling within the requisite 45-day period. Because Complainant did not do so and did not provide reasons for his failure to seek redress in a timely manner, the AJ did not consider claims (d), (e), (f), (g), and (h) as part of the alleged unlawful hostile work environment.
Further, with respect to Complainant's allegations that he was treated differently than his white coworkers including being teased about being from Alabama, not being recognized for his accomplishments, being disrespected in meetings, and his supervisory duties. The AJ found that Complainant's supervisor (S1) references to Alabama were regarding S1's and Complainant's banter regarding football teams. S1 maintained that Complainant was not disrespected in meetings, and was recognized for his contributions and was monetarily awarded. Further, the Agency explained that while technically Complainant did not have a supervisory position, he supervised two employees. After the Agency reorganized its administrative unit, however, all employees were placed under the direct supervision of S1. As such, work from the two employees no longer needed to go through Complainant because S1 now handled the entire unit. Additionally, because the unit was newly reorganized, an informal survey was conducted, management maintained that it had nothing to do with Complainant; and the record was devoid of any evidence that the survey directly impacted or impugned Complainant or his reputation.
The record also showed that Complainant was reprimanded because he failed to correct errors in a document even though it was part of his job responsibilities. The record also indicated that the interactions between Complainant and S1 became increasingly volatile. Complainant often refused to speak to his supervisor and refused to sign documents, including his performance appraisal. Complainant also failed to follow S1's repeated directives to provide a new employee access to the Agency's calendar system. The record also indicates that S1 told Complainant not to report to work earlier than scheduled, but Complainant took exception to being told that he could not be on site an hour before his official start time. S1 explained that he had observed Complainant working instead of eating breakfast as he had indicated and because of this he had concerns that overtime obligations could be triggered.
Further, Complainant was disciplined and ultimately was reassigned because management indicated that he was unable to work professionally with S1. The AJ found that the incidents complained of by Complainant lacked any evidentiary foundation establishing unlawful discriminatory animus. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not establish pretext. The AJ also found that the incidents complained of by Complainant were work related incidents that were not severe or pervasive enough to establish a hostile work environment.
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 a hostile work environment and/or discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his earlier arguments. For example, Complainant asserts that after the reorganization he was placed in a non-supervisory position. He also contends that S1 treated him differently than white employees. Moreover, Complainant asserts that the AJ erred in dismissing some of his claims as untimely and therefore not considering them for his harassment claim. He argues that the claims should have been considered as evidence of his harassment claim.
Further, Complainant maintains that since his participation in the EEO process he has been in a state of fear of being retaliated against. He indicates that he has lost stature, his private office, his staff, and has lost respect throughout the command. Co-workers have told him that they fear talking to him because they could be retaliated against.
Complainant contends that the AJ erred in not having a hearing regarding this matter. He maintains that it is well known in the Agency that S1 has been repeatedly involved in EEO proceedings and IG complaints.
In response, the Agency contends that it did not receive the AJ's decision which is why it did not issue a Final Order. Next, the Agency argues, among other things, that the AJ erred in not considering Complainant's untimely claims as background for his harassment claim. The Agency asserts, however, that even when considering all of Complainant's claims, Complainant failed to provide any evidence of discrimination and failed to prove that any of the allegations were severe or pervasive enough to affect a term or condition of employment, failed to prove pretext, and failed to prove that the identified management officials were aware of his prior EEO activity. The Agency argues that its Motion for Summary Judgment identified the issues in the case and addressed them all and therefore should be affirmed. The Agency also requests that no additional information be allowed into the case.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that there are no material facts at issue and all notice and discovery requirements were met. As such, we find that even if we assume arguendo that Complainant established a prima facie case of race discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was discussed above. We find that Complainant did not demonstrate that management was aware of his prior EEO activity. We also find that Complainant did not show that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved with the Agency's decisions. While it is obvious that Complainant and S1 did not get along, there was no evidence presented that the incidents were based on prohibited discriminatory reasons.
Further, with respect to Complainant's harassment claim, like the Agency, we find that the AJ should have considered the dismissed allegations as background for Complainant's overall harassment claim. Nevertheless, like the AJ, we find that the matters raised by Complainant were not shown to be severe or pervasive nor linked to any discriminatory animus. For the most part, we find Complainant's harassment claim in total involves normal work-related interactions and disagreements. Accordingly, we find that the incidents were not severe or pervasive enough to establish a hostile work environment.
Regarding, Complainant's contentions on appeal, we find that he merely reiterated matters that were previously argued and adequately addressed by the AJ. We find that Complainant has not demonstrated that he was subjected to discrimination, reprisal, or a hostile work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 Complainant's 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
__11/16/17________________
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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