0120113099
02-12-2013
Roger Richardson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Roger Richardson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113099
Hearing No. 430-2010-00294X
Agency No. 200405902009104636
DECISION
On June 11, 2011, Complainant filed an appeal from the Agency's April 27, 2011, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Agency's Medical Center facility in Hampton, Virginia.
On October 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (light-skinned1), and age (date of birth not provided) when:
on December 4, 2009, the Associate Director (AD: African American, light skinned, male, age not provided) issued Complainant a 14-day suspension.
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.
The AJ assigned to the case granted the Agency's April 5, 2011 motion for a decision without a hearing and issued a decision without a hearing on April 15, 2011. The AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action and that Complainant failed to establish that the Agency's articulated reason was a pretext for prohibited discrimination. Specifically, the AJ found that a management official2 (S3: Caucasian, White, male, age not provided) averred that Complainant was disciplined because he "had been given direct orders to follow [the] proper chain of command. And for some reason [Complainant] appears to not want to follow that chain of command. So it was basically given for his failure to follow instructions based on the direct order." AJ's Decision, p. 5. The AJ found that the Agency's action was reasonable, that Complainant failed to show that others were treated differently, and failed to show that the Agency's action was "motivated by a discriminatory reason or that the Agency's proffered legitimate reason is unworthy of credence." Id., p. 6.
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. The instant appeal followed.
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 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 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 instant case, Complainant has not established that there exist unresolved issues of material fact that require a hearing. The record developed during the investigation appears adequate to render a decision on the merits of Complainant's claim.
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, Complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the Agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
The AJ found that the responsible Agency officials articulated a legitimate nondiscriminatory reason for the disputed action and under United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983), it was therefore unnecessary to determine whether Complainant established a prima facie case. The AJ found that Complainant had been issued the suspension "for his failure to adhere to clear instructions to follow his supervisory chain of command when addressing work-related issues." AJ's Decision, p. 4. We note that the record shows that Complainant was issued a document, dated October 27, 2009, entitled Revised Proposed Suspension which stated that Complainant would be suspended for "Failure to Carry Out Instructions," Report of Investigation (ROI) Exhibit C-16, p.16. The document noted that Complainant had been notified on at least three previous occasions about the appropriate chain of command when expressing complaints. See id. The document further noted that Complainant failed to follow these instructions and that he had been previously disciplined on a previous occasion for disrespectful conduct and failure to carry out instructions. See id.
The burden thus returns to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant seeks to show pretext by showing that other coworkers outside of his protected classes were treated less severely for infractions that were as, or more, severe than his own. The AJ found that Complainant failed to identify anyone who had committed an identical offense but that "the Agency provided ample examples of employees who had received similar disciplinary actions under circumstances similar to Complainant." Decision, p. 6. The Agency submitted disciplinary notices for a number of employees showing various forms of discipline being imposed for a variety of infractions, including an employee who was suspended for 14 days for being absent without leave (AWOL) and for failing to follow leave procedures. See ROI, Exhibits C-13 and 14. We therefore find that the AJ's finding in this regard is supported by substantial evidence.
Complainant has argued that he was the only employee required to follow the chain of command and that other employees were able to bypass it without repercussions. We note, however that the record shows that, on August 24, 2009, a memo was issued addressed to "all employees" explaining the importance of following the proper chain of command. See ROI, Exhibit C-17. While Complainant maintains that, in practice, other employees bypassed the chain of command without repercussions, Complainant has not provided any specific details about any such incidents. We note that, a party opposing a decision without a hearing may not rest upon mere allegations in the pleadings or upon conclusory statements. Rather, he must provide some evidentiary support for his contentions. Celotex, 477 U.S. at 324. Here, Complainant has not provided any evidence, or even his own statement identifying relevant details, to support his contention that other employees bypassed the chain as command as often as he did yet faced no repercussions.
Finally, we can find no evidence in the record that would indicate that the Agency was motivated by discriminatory animus towards Complainant's race, color, sex, or age. Therefore, we find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reason was a 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.
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
February 12, 2013
__________________
Date
1 The Commission uses the definitions provided by the parties and witnesses in the record.
2 The AJ identified the official as Complainant's supervisor. However the official cited is Complainant's third-level supervisor.
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0120113099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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