0120110507
08-30-2012
Rodney Chambers, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Rodney Chambers,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120110507
Hearing No. 430-2010-00021X
Agency No. HS-09-ICE-003408
DECISION
Complainant filed an appeal from the Agency's 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. 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.
ISSUES PRESENTED
The issues presented on appeal are: (i) whether the EEOC Administrative Judge (AJ) properly issued a summary judgment decision; and (ii) whether the AJ correctly found that the Complainant did not establish that the he was subjected to discrimination and hostile work environment harassment based on race, color, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent Criminal Investigator, GS-1811-07 at the Agency's Office of Investigations in Norfolk, Virginia. Complainant began his employment with the Agency on March 2, 2008, and was hired on an excepted appointment, not to exceed two years, which required a one-year probationary period.
On May 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (association with African-American employees), color (white), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. between August 2008 and January 2009, management repeatedly spoke to him in a loud and demeaning manner;
2. in October and November 2008, a female coworker (C1) accused him of making inappropriate comments;
3. on January 23, 2009, coworkers exaggerated his computer security policy infraction to facilitate his termination; and
4. on January 30, 2009, the Agency terminated him from his 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 requested a hearing. After finding that Complainant failed to timely respond to the Agency's motion for a decision without a hearing, the AJ assigned to the case granted the Agency's June 3, 2010, motion and issued a decision without a hearing on September 1, 2010, and entered judgment in favor of the Agency. The Agency subsequently issued a final order implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In particular, with respect to claim 1, the AJ noted that Complainant's first-level supervisor (S1) did not deny speaking to Complainant in a loud voice. The AJ noted that S1 testified that Complainant was unreceptive to suggestions and alternative points of view, and was generally argumentative with his coworkers. The AJ further noted that S1 averred that Complainant demonstrated inability to adapt to accepted Agency practices or to maintain professional decorum with Agency personnel. With regard to claim 2, the AJ noted that Complainant approached C1 and suggested that she attend a breast cancer screening. The AJ noted that C1 believed that Complainant began disliking her when she refused his sexual advances. The AJ noted that C1 said that Complainant "would objectify and demean women by making gestures and kissing sounds and licking his lips when he would observe women in public . . . ." The AJ noted C1 indicated that Complainant implied that he was better than her husband and was very disrespectful towards her.
Regarding claims 3 and 4, the AJ noted that Complainant allowed a witness to use his work computer. The AJ noted that management told Complainant that it was a security violation to allow the witness to use his computer. The AJ noted that, after the Supervisory Detention and Deportation Officer (SDDO) reported Complainant's actions as a security breach, Complainant said to him, "Are you my enemy?" and also said to him, "You don't want to be my enemy." The AJ noted that the SDDO viewed Complainant's statements as threatening. The AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, contends that the AJ erred when she issued a decision without a hearing. Complainant contends that the AJ improperly found that Complainant's response to the Agency's motion for decision without a hearing was untimely. Complainant also contends that credibility issues remain, which must be decided at a hearing. Complainant contends that management made a conscious effort to antagonize and accuse him of wrongdoing. Complainant contends that the Agency's own investigation concluded that Complainant's action of letting a witness use his computer was not a violation of Agency computer security policy. Complainant contends that the Agency decided to terminate him on an allegation that was untrue because he did not violate Agency policy. Complainant contends that he was an exemplary employee and there is no explanation in the record that would justify his termination. Complainant contends there is a credibility issue pertaining the Agency's decision to terminate him.
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. (Nov. 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 Chap. 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
Summary Judgment
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, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. We note that Complainant contends that he was denied an opportunity to respond to the Agency's motion for summary judgment. Nevertheless, on appeal, Complainant had the opportunity to provide evidence and arguments to establish that the AJ's decision to grant summary judgment and to issue a finding of no discrimination was inappropriate, as explained below. Therefore, we find that Complainant has not established that he was unfairly denied the opportunity to oppose summary judgment. We further find that the record has been adequately developed, Complainant was given a comprehensive statement of undisputed facts, and had the opportunity to engage in discovery. Further, even if we assume all facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor, as explained below. Therefore, no genuine issues of material fact exist.
Disparate Treatment
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); 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 find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 1, S1 explained that he would speak to Complainant in a loud voice because Complainant demonstrated an inability to adapt to Agency practices and maintain a proper professional decorum with Agency personnel. Report of Investigation (ROI), S1's Aff., at 4. S1 explained that Complainant was argumentative with staff and difficult to supervise. Id. at 5. With regard to claim 2, C1 explained that Complainant "would objectify and demean women by making gestures and kissing sounds and licking his lips when he would observe women in public . . . ." ROI, C1's Aff., at 5. C1 explained that she thought Complainant began disliking her when she refused his sexual advances. Id. C1 explained that Complainant had implied that he was better than her husband and was very disrespectful towards her. Id. Regarding claims 3 and 4, the Assistant Special Agent in Charge (ASAC) explained that after the SDDO reported Complainant's actions as a security breach, Complainant said to the SDDO, "You don't want to be my enemy." EEO Counselor's Report, at 10. The ASAC explained that because the SDDO viewed Complainant's statement as threatening, he decided to terminate Complainant during his probationary period. Id. The ASAC also mentioned that C1's allegations factored into his decision. Id. at 9.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. In an attempt to show pretext, Complainant contends that that the Agency's investigation concluded that his action of letting a witness use his computer was not a violation of Agency computer security policy. While Complainant's actions may not have been a violation of Agency policy, Complainant does not dispute that he said to the SDDO, "Are you my enemy?" and said, "You don't want to be my enemy." Complainant also does not dispute that he told C1 that she should attend a breast cancer screening. EEO Counselor's Report, at 5. We note that agencies have greater discretion to remove an employee during the employee's probationary period than they do in removing a career employee. See Deane, Jr. v. U.S. Dep't of Interior, EEOC Appeal No. 0120093195 (June 17, 2011) (citing Pittman v. U.S. Postal Serv, EEOC Appeal No. 01840334 (Apr. 4, 1986)). Therefore, we find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory explanation was pretext for discrimination, or that the Agency's actions were motivated by discriminatory animus.
Hostile Work Environment Harassment
With respect to Complainant's contention that he was subjected to a hostile work environment, we find 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 these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
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 implementing the AJ's finding of 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
August 30, 2012
Date
2
0120110507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110507