Sol W.,1 Complainant,v.Rex W. Tillerson, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJul 20, 2017
0120150435 (E.E.O.C. Jul. 20, 2017)

0120150435

07-20-2017

Sol W.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Sol W.,1

Complainant,

v.

Rex W. Tillerson,

Secretary,

Department of State,

Agency.

Appeal No. 0120150435

Hearing No. 570-2012-00229X

Agency Nos. DOS-F-088-10

DOS-F-071-11

DECISION

On November 12, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 14, 2014, final order concerning his equal employment opportunity (EEO) complaints 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 Agency's final order.

ISSUES PRESENTED

The issues presented before the Commission are: (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to issue a decision without a hearing was proper; and (2) whether Complainant established, by preponderant evidence, discrimination and harassment based on race and/or reprisal.

BACKGROUND

During the period at issue, Complainant worked as a Director, Office of Foreign National Payroll Operations (GS-15), at the Agency's Global Financial Services (GFS) Center located in Charleston, South Carolina. On June 1, 2010, he filed an EEO complaint alleging discrimination based on race (African American) when, on February 10, 2010, he was (a) not selected for the Senior Executive Service (SES) position of Managing Director of Global Compensation (GC); (b) designated to serve on the Bargaining Unit Contract Review Committee (BUCRC); and (c) subjected to an on-going pattern of hostile work environment.2

On May 4, 2011, Complainant filed another EEO complaint in which he alleged discrimination based on race and reprisal (prior Title VII EEO activity) when he was not selected for the position of Managing Director of Global Financial Operations (GFO) advertised under Vacancy Announcement No. CSP-2011-0008.3 Both complaints were accepted for investigation and subsequently consolidated for processing.

After a joint investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge, or alternatively, an immediate decision from the Agency based on the ROI. Complainant requested a hearing. Thereafter, his case was forwarded to the appropriate EEOC District Office and assigned to the AJ.

Over Complainant's objections, the AJ granted the Agency's May 23, 2011, Motion for Summary Judgment. On September 25, 2014, she issued a decision without a hearing in which she found Complainant had not established discrimination as alleged. The Agency subsequently issued a final order adopting the AJ's finding. Complainant thereafter filed this appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Commission's EEO complaint process is inherently flawed in that in holds complainants to strict deadlines. He also contends that he was somehow wronged because his appeal was handled by the EEOC's Washington Field Office when it should have been disposed of by the Commission's Atlanta District Office.

Complainant also contends that the AJ abused her discretion by considering his position, a GS-15, as a high-ranking position while ignoring his contention that his position was given to him as a token in response to pressures to make the front office more diverse. Finally, Complainant contends that if given a hearing, he would have proven that some of the statements of facts presented in the AJ's Motion for Summary Judgment, and accepted by the AJ as true, were false.

For its part, the Agency contends that there: are no genuine issues of material fact; Complainant did not establish discrimination based on race or reprisal; designating Complainant to serve on the BUCRC was not an adverse action; the Agency had legitimate, nondiscriminatory reasons for its actions; and Complainant's hostile work environment claim does not rise to the level of harassment. The Agency closes by requesting that the Commission affirm its adoption of the AJ's decision.

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").

ANALYSIS AND FINDINGS

Contentions on Appeal

Initially, we address Complainant's contentions on appeal. Notwithstanding Complainant's concerns with the federal sector EEO process, all parties who avail themselves of that process are required to follow the deadlines and procedures set forth therein. See 29 C.F.R. � 1614.103(a) (stating, in relevant part, that individual complaints of discrimination shall be processed in accordance with this part).

Further, while Complainant challenges the Commission's decision to transfer his case from its Atlanta District Office to its Washington Field Office, the Commission has the discretion to transfer cases between offices to accommodate existing backlogs, as was the case here.

Finally, after reviewing the AJ's handling of this matter, we find no persuasive evidence that she abused her discretion in any manner.

Decision without a Hearing

We now consider whether it was proper for the AJ to have issued a decision without a hearing on the record in this case. 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.

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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).

After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. The record reveals that Complainant was provided a copy of the Agency's July 2, 2012 Motion for a Decision without a Hearing, and provided a response thereto on July 18, 2012.4 Upon review, we agree with the AJ regarding this aspect of Complainant's appeal and thus have no reason to disturb the AJ's decision to issue a decision without a hearing.

Disparate Treatment Claims

Complainant alleges discrimination based on race when he was not selected to be the Managing Director of GC, and designated to serve on the BUCRC. Complainant further alleged discrimination based on race and reprisal when he was not selected to be the Managing Director of GFO. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of race and reprisal discrimination.

The burden now shifts to the Agency to state legitimate, nondiscriminatory reasons regarding the GC and GFO non-selections, and the BUCRC designation. The Selecting Official (SO) stated that the Selectee was chosen in favor of Complainant for the GC position because the Selectee (S1) had experience managing a large unit responsible for maintenance and development of several pay and financial systems; had 20 years of experience working with the Agency's Office of Budget and Resource Management as well as the financial systems for a range of Agency organizations. The SO explained that the S1's resume revealed that he played a key role in the development and implementation of worldwide financial systems, and that the SO considered S1's financial systems background to be very important because the Agency was planning to replace soon all its pay systems with a new one and the person ultimately chosen would be heavily involved in the transition.

Regarding the GFO position, the SO stated that he selected Selectee 2 (S2) based upon her 26 years of federal financial experience, 16 of which were served in senior positions in the Agency's GFO. The SO cited S2's CPA credentials, her experience as Director of Global Accounting leading a staff of over 130 employees; her key roles in consolidating the Agency's worldwide financial operations; the work she did to upgrade domestic and overseas accounting systems; her proven ability to deliver customer service while balancing the Agency's corporate needs; and her demonstrated ability to manage and lead a worldwide financial organization. The SO acknowledged Complainant's strong technical skills but stated that Complainant did not have the breadth of experience that S2 had in the Agency's core financial systems or in managing large operating units with global financial operating responsibilities.

Regarding the BUCRC designation,5 the Agency stated that Complainant was designated as such in an effort to enhance his career. Upon review, the Commission finds that the Agency has stated legitimate non-discrimination reasons for its actions.

Complainant must now present evidence showing that the Agency's stated reasons are pretexts based on his race and/or prior EEO activity. To meet this burden of proof regarding the non-selection allegations, Complainant argues that his experience rendered him more qualified than those of the selectees. In non-selection cases, Complainant can establish pretext by showing that his qualifications are "plainly superior" to those of the Selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). No such evidence was shown by Complainant or revealed in the ROI. Upon review, the Commission finds that Complainant has not met his burden to show that the Agency's stated reasons were pretextual as to his non-selection claims.

Regarding his designation to serve on the BUCRC, Complainant presented no evidence, other than his own belief, to demonstrate that race was a factor in the Agency action at issue. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to meet his burden to show that the Agency's stated reason as to why he was placed on the BUCRC was pretextual.

Harassment

Agencies shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If the complainant does not allege he or she is aggrieved within the meaning of the regulations, the Agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of Complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment."

Complainant's supports his harassment claim by stating that based on race, a staff member from the Office of Administration asked him to vacate an office in his work area. Additionally, he believes he was harassed due to delays and difficulties in getting a contract secretary as well as a disagreement with a former GFS managing director over changing the metrics for GFS procedures. The Commission agrees with the AJ and finds that Complainant's hostile work environment claim does not rise to the level of harassment and was properly dismissed for failure to state a claim as the actions complained of are isolated matters that cannot be considered severe or pervasive. We also find that these incidents are in the nature of normal workplace interactions that are part of the normal discourse among senior managers.

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 decision to issue a ruling without a hearing was proper. We further find that Complainant failed to establish discrimination based on race and/or reprisal as to the allegations of discrimination considered herein. Accordingly, we hereby 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

_7/20/17_________________

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.

2 Agency Complaint No. DOS-F-088-10.

3 Agency Complaint No. DOS-F-071-11.

4 The Agency filed a reply to the Complainant's response on July 23, 2012.

5 It is worth noting that the AJ dismissed this allegation for failure to state a claim because Complainant did not show that he was suffered a harm or injury because of this agency action. However, because the Agency provided a reason for this event, the Commission shall consider this aspect of Complainant's claim on the merits.

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