0120162646
01-12-2018
Solomon M,1 Complainant, v. Timothy O. Horne, Acting Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Solomon M,1
Complainant,
v.
Timothy O. Horne,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120162646
Hearing No. 520-2015-00059X
Agency No. GSA-13-R2-Q-0161
DECISION
On August 15, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 4, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Mechanical Engineer at the Agency's Technical Services and Product Management, Federal Acquisition Center facility in New York, New York.
On December 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Russian American) and age (49 years at time of incident) when:
1. Complainant was denied the opportunity to compete for the Commodity Management Division Director (GS-14) position within the Commodity Management Division, Federal Acquisition Service (FAS); and
2. At the end of his 120-day temporary promotion to the Acting Director of Product Management and Technical Services Division Complainant was required to continue performing the duties of that position but at a lower grade (GS-13).
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/Complainant's February 27, 2015, motion for a decision without a hearing and issued a decision without a hearing on July 15, 2016. Specifically, the AJ found that Complainant failed to establish a prima facia case with regard to claim 1 because he could not show he was treated differently since the evidence established that the Commodity Management Division Director position was never posted due to a nationwide Agency restructuring that affected many employees besides Complainant. The AJ further found that, assuming Complainant established a prima facie case, the Agency's articulated a legitimate, nondiscriminatory reason for its action, namely, that the position in question was never posted because of the restructuring. The AJ further found that Complainant failed to establish that the Agency's articulated reason was a pretext. With regard to claim 2, the AJ found that Complainant agreed to continue performing the duties of the GS-14 position while receiving GS-13 pay and hence he was not subjected to an adverse action. Finally, the AJ found there was no evidence that the Agency's actions were due to Complainant's national origin or age.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to establish that the Agency subjected him to discrimination as alleged.
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
In order to establish a prima facie case, a complainant may show that he is a member of a protected class, that he was subjected to adverse treatment, and that he was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The AJ found that Complainant failed to establish a prima facie case with regard to claim 1 because Complainant could not show he was treated differently than otherwise similarly situated employees outside of his protected classes. Complainant stated in his Affidavit that the position at issue was never posted, see Report of Investigation (ROI), Affidavit A, p. 4, and has produced no evidence showing, nor has he alleged, that the position was offered to someone of a different national origin or age than himself. Furthermore the record establishes that the position in question was not posted due to an Agency-wide restructuring that affected numerous employees outside of Complainant's protected classes. We therefore find that the AJ's finding is supported by substantial evidence and we discern no basis to disturb it.
On appeal, Complainant refers to an additional nonselection "in early 2011" when the position was posted and he applied but never received an interview. We note, however, that Complainant's EEO Counselor contact did not occur until January 22, 2014, which would be untimely for any nonselection that may have occurred in 2011.
With regard to claim 2, we note that, assuming arguendo that Complainant incurred an adverse action and established a prima facia case, the Agency articulated a legitimate non-discriminatory reason for its action when Complainant's then first-level, now second-level supervisor (S: China, 57 years) averred that Complainant agreed to stay on working at the GS-14 level at the end of his detail while receiving GS-13 pay. See ROI, Affidavit G, p. 7. The burden thus shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
Following a review of the record we find that Complainant has failed to meet this burden. Complainant argues that he was intentionally misled into thinking that if he agreed to work at the GS-14 level while receiving GS-13 pay this would stand him in good stead once the GS-14 Commodity Management Division Director became available. Even assuming arguendo that management officials knew the nationwide restructuring was imminent and that the Commodity Management Division Director position would never be posted and intentionally misled him, Complainant has not shown that they harbored any animus towards his protected bases or that their actions were motivated by hostility towards his age and/or national origin. We therefore again find no basis to disturb the AJ's finding.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the presence of a material issue of fact and has met his burden of establishing that discrimination occurred. We therefore 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
January 12, 2018
__________________
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
0120162646