0120151601
03-23-2017
Sherman K.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherman K.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120151601
Hearing No. 570-2013-00569X
Agency No. 12-00030-00281
DECISION
On March 30, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's March 4, 2015, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency's Strategic Systems Program facility in Washington, D.C.
On January 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (learning disability, Adult Attention Deficit Disorder) when:
1. His supervisor (Supervisor) subjected him to heated and demeaning verbal confrontations, one which took place on September 29, 2011.
2. He has been denied a promotion to the GS-12 level, based upon criticism of his communication, learning, logic, and knowledge skills.
3. He was been denied opportunities to learn on the job and contribute to the office, which includes denied opportunity to shadow members of the Interagency Work Group.
4. He did not receive recognition for his past performance on the NT10 Team.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on January 7, 2015.
With regard to Complainant's disparate treatment claim concerning the denial of a promotion to the GS-12 level, the AJ held that Complainant failed to prove that he was subjected to disability based discrimination.
The AJ also considered the allegations raised in the complaint as a claim of on-going discriminatory harassment. The AJ indicated that Complainant asserted that he was subjected to repeated heated and demanding verbal confrontations. Complainant raised one event between him and the Supervisor on September 29, 2011. The record indicated that Complainant left prior to the end of an "all hands meeting," that had only been scheduled the day prior. The AJ found that the exchange on this matter resulted from nothing more than a misunderstanding. Furthermore, the AJ noted that Complainant failed to make any connection between his alleged disability and the incident on September 29, 2011.
Complainant also asserted that the Supervisor denied him the opportunity to learn on the job or contribute to the office including denied the opportunity to shadow members of the interagency work group. The AJ held that there was no merit to Complainant's claim. The AJ found that Complainant did not provide any evidence that the ability to shadow other employees would have been an effective tool to advancement; that other GS-11 employees were allowed to shadow anyone; or that shadowing the GS-15 members and members from other agencies would have assisted Complainant.
With regard to recognition for his work on the NT10 team, the AJ noted Complainant's prior supervisor noted in his Close-Out Assessment that Complainant's performance was in need of improvement. As such, the AJ concluded that Complainant failed to show any merit to this claim. In sum, the AJ concluded that Complainant failed to show that any of the events proffered as proof of harassment were connected to Complainant's disability.
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.
This appeal followed. Complainant argued on appeal that he provided sufficient evidence to establish that he was subjected to a hostile work environment and to disparate treatment based on his disability. As such, Complainant requested that the Commission reverse the AJ's decision and remand the matter for a hearing on the merits of his complaint. Complainant asserted that his prior supervisor treated him "like a dog" and was tired of dealing with him. Further, he asserted that the Supervisor (his current supervisor) failed to give him a chance and did not trust him or allow him to get up to speed.
ANALYSIS AND FINDINGS
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 order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
Disparate Treatment - Non-Promotion
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Complainant asserted that his prior supervisor stated that he would be promoted to the GS-12 after he completed the transition notification plan. However, after he completed the plan, the prior supervisor failed to promote him. The record shows that the prior supervisor noted in the "close out assessment" that Complainant required much guidance, coaching and oversight to complete assignments which is why he remained at the GS-11 level. The current Supervisor noted that Complainant had performance problems and was barely passing at the GS-11 level. The Director also indicated that Complainant was performing at a minimally successful level as a GS-11. As such, the Agency did not promote him to the GS-12 level. We find that the Agency provided legitimate, nondiscriminatory reasons for not promoting Complainant. Upon review, we find that Complainant has failed to provide any evidence to establish pretext. As such, we conclude that Complainant has not shown that the denial of promotion constituted unlawful disability-based discrimination.
Ongoing Harassment - Events 1 - 4
It is well-settled that harassment based on an individual's disability is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he is a qualified individual with a disability covered under the Rehabilitation Act; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his disability; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Upon review of the record, we find that Complainant has failed to provide any evidence to suggest that the alleged events which he asserted constituted harassment occurred due to his presumed disability. As to event 1, Complainant asserted that the Supervisor screamed at him for leaving the "all hands meeting" early and he was clearly upset with Complainant. Complainant asserted that he was treated in a demeaning and belittling manner. However, Complainant failed to show that this event occurred based on his presumed disability. As noted above, we find that Complainant did not show that the denial of promotion as alleged in event 2 was connected to his presumed disability. As to event 3, Complainant asserted that he was denied requests to shadow other employees, to meet with supervisors, and to attend working group and interagency meetings. Again, Complainant made these assertions without evidence to support his bald claim that this was due to his disability. Finally, as to event 4, Complainant argued that he was not given the recognition for his accomplishment on NT10. Complainant merely asserted that he was not considered for recognition without connecting the alleged event to his presumed disability. As such, we conclude that Complainant has not established that the alleged harassment occurred because of his disability.
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 action adopting the AJ's decision finding no discrimination and/or harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
March 23, 2017
__________________
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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