0120141072
01-09-2017
Stevie R,1 Complainant, v. G. Wayne Clough, Secretary, Smithsonian Institution, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stevie R,1
Complainant,
v.
G. Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120141072
Hearing No. 570-2012-00885X
Agency No. 12-04-120811
DECISION
On January 17, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 23, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing which found that Complainant was not subjected to discrimination or reprisal.
ISSUE PRESENTED
The issue presented in this case is whether Complainant established that he was subjected to discrimination and reprisal when he was repeatedly placed on AWOL.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Worker Helper, GS-5 at the Agency's Office of Facilities Management and Reliability facility in Washington, D.C. Complainant maintained that he was told to remove his "Dallas Cowboys" hat and when he refused he was placed on AWOL. Complainant asserted that his Caucasian Supervisor issued adverse/disciplinary actions against him regarding an alleged uniform policy violation, while officially on the clock (6:30 AM - 3:00 PM). Complainant maintained, however, that his supervisor and another supervisor allowed a Caucasian co-worker to wear a sweatshirt (Puma) over his embroidered Smithsonian Institution recognized uniform shirt. They spoke to him, issued him an assignment and allowed him to go to work during the same period of time. Complainant contends that the supervisor did not ask the coworker to remove his sweatshirt. Within minutes, Complainant maintained that he was approached by those same supervisors, was ordered to remove his "Dallas Cowboy" hat, was denied representation, and was relieved of duty and issued a total of 152 hours of AWOL.
Complainant indicated that he did not violate the uniform policy by wearing his hat. He explained that on January 24, 2011, the President of the Local sent an email to the stewards that while in their official capacity they were to wear a plain Union hat or the Agency's hat. On October 12, 2011, the Director of his unit had a town hall meeting to discuss what was recognized as a uniform. Complainant indicated that hat/cap/headgear was not mentioned. As the union had not been consulted regarding this the uniform issue, the union contacted the Director and she stated that she would look into it but she never responded. Complainant asserts that there was no policy with respect to hats/caps being recognized as part of the official uniform.
Complainant also maintained that he was subjected to discrimination when on October 31, 2011, he was instructed to move office furniture. Complainant maintained that this was not a part of his position description so he should not have been punished for refusing to do this work. Complainant also argued that he did not violate his leave restrictions because he did not know that he had leave restrictions. He maintained that as soon as he saw management he invoked his right for representation and then left so he never had official knowledge of the leave restriction. Finally, Complainant indicated that management treated him in a discriminatory manner when he was charged with AWOL when he attempted to take a 59 minute safety-award that his work group received.
On December 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity when:
1. During the period September 14, 2011 through November 25, 2011, he was carried as AWOL for a total of 152 hours for refusing to remove headgear that had affixed to it a Dallas Cowboy Football team logo;
2. On October 27, 2011, he was charged with 7 hours of AWOL for failing to follow orders to move office furniture.
3. He was retaliated against on April 6, 2012, when his supervisor denied his request for leave and listed him as AWOL for a leave restriction violation; and
4. On April 9, 2012, his supervisor denied his request to leave early using 59 minutes of leave that employees were granted for 100 days of safety while other employees, such as a white employee, received 59 minutes of early dismissal.
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 September 30, 2013, motion for a decision without a hearing. The Agency in its motion maintained that even if Complainant established a prima facie case of discrimination and reprisal the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was placed on AWOL because he refused a direct order to take off his hat. The Agency indicated that the issue of whether there was a uniform policy was immaterial because the real issue was that Complainant disobeyed a direct order. The Agency explained that contrary to Complainant's argument that other employees were treated more favorably, an employee that was wearing a "Redskins" hat was asked to remove his hat and he complied. Management maintained that there was no truth to Complainant's argument that there was a "Cowboys versus Redskins" disparate treatment theory. Further, with respect to the employee that wore the Puma sweatshirt, management maintained that unlike Complainant he was not seen by his direct supervisor.
The Agency acknowledged that Complainant was charged with seven hours AWOL after he refused to move furniture. Management maintained that Complainant refused the instruction, claiming that it was not within his position description, and told his co-workers to do the same. Management indicated that the entire purpose of Complainant's position, mechanical worker helper, was to help the mechanical workers perform their jobs. Management indicated that placing Complainant in AWOL status because he refused to perform his job was not discriminatory or retaliatory.
With regard to Complainant's claim that he was not on leave restriction, and should therefore not have been placed on AWOL, management indicated that on April 3, 2012, Complainant was placed on leave restriction by his supervisor because he had a negative annual leave balance, a negative sick leave balance, and he had frequently used unscheduled leave. Management explained that when Complainant's supervisor attempted to give the letter notifying Complainant that he was on leave restriction effective immediately, Complainant refused to accept the letter. Complainant then did not report for work on April 4 and 5, 2012. He did not notify management of his absence and when he returned he did not provide any documentation to support his absence so he was charged with violating his leave restrictions and was placed in an AWOL status for April 4 and 5, 2011.
Further, regarding Complainant's claim that he was denied the use of his safety award, the Agency explained that on February 23, 2012, the craft shop received a 59 minute time-off award. Complainant and another employee verbally asked to use their leave on the following day, February 24, 2012. Thereafter, on April 9, 2011, Complainant requested that he be allowed to use his safety award. According to his supervisor, Complainant's request was denied because he believed that Complainant had already used his 59 minutes of leave. Management indicated that to eliminate any dispute, Complainant was ultimately allowed to use another 59 minutes of leave. The Agency argued that Complainant did not demonstrate that its articulated legitimate reasons were pretext for discrimination. The AJ issued a decision without a hearing on December 16, 2013, in favor of the Agency. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not establish that the Agency subjected him to discrimination or retaliated against him as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency had no official uniform policy so therefore the Agency had no right to tell him to take his hat off. Moreover, he maintains that other employees were not told to take off their clothing items. He maintains that one coworker wore a "Redskins" hat and he was not told to remove it and a second employee wore a Puma sweat shirt and management did not ask him to remove it. Further, Complainant asserts that the Agency's argument that moving furniture was just part of his duties that were included in his position description is wrong. Complainant points out that another group of employees have moving furniture in their position descriptions and therefore they should have been the employees to move the furniture. He also contends that he was not told about a leave restriction so it was impossible for him to have violated it. Finally, Complainant maintains that with respect to his use of his safety time off award the Agency just let him use it to save the peace.
The Agency did not provide a brief but submitted the Final Order which fully implemented the AJ's finding that Complainant did not demonstrate that he was subjected to discrimination or reprisal.
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
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). In the instant case, we find that the AJ properly notified all parties of the requirements of summary judgment. Upon review we find that there are no material facts at issue and the AJ properly issued a decision without a hearing.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. We find that Complainant did not show that the Agency's reasons were pretext for discrimination or reprisal. With respect to Complainant's contentions on appeal, we find that other than his conclusory statements about why he disagrees with the Agency he has not provided any evidence which shows that the Agency's actions were discriminatory or made because of prior EEO activity. What the evidence shows is that unlike his named comparators, Complainant repeatedly refused to follow direct orders from his supervisor, took extensive leave, and repeatedly challenged management.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order which fully implemented the AJ's finding that Complainant did not establish that he was subjected to discrimination or reprisal.
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
_1/9/17_________________
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.
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