0120082086
08-26-2008
Winfred Daniels, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Winfred Daniels,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082086
Hearing No. 560-2007-00177X
Agency No. 9V1M06178
DECISION
Complainant filed an appeal from the agency's final order, dated April
29, 2008,1 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
During the relevant time, complainant worked as a WG-11 Nondestructive
Tester at Tinker Air Force Base, in Oklahoma. Believing that he was
subjected to continuous harassment by management, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, complainant filed a formal complaint
based on race, color, age, disability, and retaliation. The agency
framed the claims as follows:
(1) on April 12, 2006, complainant received his civilian annual rating
of record for the timeframe April 1, 2005, through March 31, 2006,
which was a lower numerical rating than he feels he deserved, and he
did not receive any type of award;
(2) on April 12, 2006, complainant was issued an out of cycle civilian
rating of record for the time frame February 9, 2006, through April 12,
2006 which was lower than he believes he deserves;
(3) on April 4, 2006, complainant was issued a 971 supplement which
identified an issue where complainant was written up for failing to keep
his appointment for an FPI practical schedule for April 3, 2006 which
was resolved as counseling;
(4) on April 1, 2006, complainant was denied his Wage Grade Increase
(WGI) by his management;
(5) on March 9, 2006, complainant was issued a 971 supplement which
identified an issue where complainant failed to follow the proper chain
of command on March 8, 2006 which was resolved as counseling;
(6) on February 10, 2006, complainant was issued a Notice of Opportunity
to Improve Performance to an Acceptable Level Memorandum and was issued
an out of cycle civilian rating of record for the time frame February 1,
2005 though February 9, 2006 in which he received an overall performance
rating of unacceptable; and
(7) on February 3, 2006, complainant was issued a 971 supplement which
identified an issue where complainant was observed out of his immediate
work area, which was resolved as counseling.
At the conclusion of the investigation, complainant was provided 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. Over the complainant's objections, the AJ
assigned to the case granted the agency's July 31, 2007 motion for a
decision without a hearing and issued a decision on February 12, 2008.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
The AJ concluded that there were no material questions of fact.
The primary agency actions at issue, noted the AJ, were performance
appraisals, which then resulted in a PIP, and the delay of a WGI
increase. Complainant also believed that he was unreasonably written
up for minor infractions. The AJ, however, concluded that the agency
provided a legitimate, non-discriminatory reason for its actions:
namely, that complainant repeatedly failed to pass his certification
exams and therefore was unable to do his job. Further, the AJ
found that complainant failed to establish pretext. The AJ was not
persuaded by complainant's contention that a prior settlement agreement
allowed him to take the exams at the time of his choosing, rather than
submitting to agency pressures and timeframes. Instead the AJ concluded
that complainant misunderstood the terms of the agreement, thereby
contributing to his belief that the agency's actions were harassment.
As to complainant's assertion that the petty nature of the agency's
actions should raise an inference of discrimination, the AJ disagreed.
After complainant passed his certification and he was given an acceptable
rating, complainant alleged that his scores for some individual elements
were too low. Specifically, the AJ stated that complainant thought he
should have received the highest possible rating. The AJ found that
complainant's temporary lack of certification was a legitimate reason
for the lower scores.
The AJ believed that legitimate, non-discriminatory reasons for the
"core" actions were presented. As for any remaining incidents, the
AJ concluded they were not sufficiently severe or pervasive to state a
claim of discriminatory harassment.
While complainant clearly alleged that the agency's actions constituted
harassment, the AJ noted that "it is unclear whether complainant is
[also] making an accommodation claim . . . ." If complainant intended to
present such a claim, the AJ concluded that he failed to do so. In his
decision, the AJ noted that complainant generally stated that he was "not
accommodated", but does not explain when he requested an accommodation,
what type of accommodation he needed, how it would allowed him to perform
the essential functions of his job, or how it would have affected his
performance ratings.
In conclusion, the AJ determined that complainant "failed to assert
the essential elements of a claim of accommodation or harassment."
The AJ found no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he has presented a prima facie case.
In support of his contention, complainant presents over five pages of
information that he entitles "Facts in Dispute." A closer read of
the pages reflects, however, that much of the content is merely the
claims that comprise the complaint. Complainant does admit that, with
respect to the April 4, 2006 discipline, he did not keep his appointment
for an "FPI practical." However, he argues that he was unaware of the
proper procedure for addressing scheduling conflicts. As to the agency's
assertion that complainant was decertified due to his failure to pass his
exams, complainant argues he was decertified because management failed to
schedule him for another exam before the expiration of his certification.
Regarding the basis of disability, complainant explains that in September
2005, he suffered an on-the-job injury. He had a brain aneurism, as
well as a strain to his neck and wrist. Complainant asserts that has a
reported history of headaches and memory loss as a result of his injuries.
The agency was fully aware of his medical condition, argues complainant,
because he
sustained the injuries on the job. Complainant believes that the
agency should have accommodated his limited vision during the exam,
noting that an agency must accommodate a known or obvious condition.
His unsuccessful exam results, contends complainant, is the result of the
agency's failure to accommodate him. Without expanding on the assertion,
complainant disputes the AJ's observation that complainant never requested
an accommodation.
In response to complainant's appeal, the agency does not dispute that
complainant suffered a head injury in September 2005 and returned to
work with light duty. However, the agency argues that it never observed
complainant to be substantially limited in any major life activities.
The agency argues that complainant is not a qualified individual with
a disability, nor was he regarded as having a disability or considered
having a record of a disability. Instead, the agency states that
complainant was simply treated as an individual with work restrictions.
Complainant was not subjected to disparate treatment due to his protected
classes, but rather, because of his inability to obtain certification
to perform his job.
As for complainant's performance appraisals, the agency reiterates that
legitimate reasons were proffered for the lower ratings for some elements.
According to complainant's supervisor, not only was complainant unable
to pass necessary exams, but he also failed to complete tasks, and items
were returned due to inadequate workmanship.
With regard to the denial of his wage increases, the agency vehemently
argues "it is beyond comprehension" how complainant can allege
discrimination when he repeatedly failed the same exams, and was given
numerous opportunities to re-take the tests. An analysis of complainant's
failure rate, conducted in preparation for an EEOC hearing, revealed
that complainant was the only employee to fail the same exam five or
more times. He was also the only employee to have twenty exam failures.
The agency contends that with respect to the "supplemental 971 entries,"
complainant was not subjected the disparate treatment. Moreover, the
matters were resolved as counseling, which is not an adverse action.
Finally, the agency maintains that management has presented legitimate,
non-discriminatory reasons for its action. Complainant, argues the
agency, has failed to establish that these reasons are pretext.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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").
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. Department of Defense, 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 correctly granted the agency's
motion and issued a decision without a hearing. Based on a review of
the record, we agree that there are no issues of material fact.
Complainant alleges that he was subjected to a hostile work environment
and harassment. Harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2) s/he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
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). He
must generally 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The record reflects that complainant's supervisor presented legitimate
reasons for the agency's actions. Complainant's repeated failure to
pass his exams resulted in his decertification. Consequently, he was
unable to perform all his duties, which was reflected in his ratings,
lack of awards and delayed WGI. The record does not establish any
nexus between complainant's race, color, age, or prior EEO activity and
the alleged events. Additionally, we note that a co-worker sometimes
considered the supervisor's treatment of complaint to be disrespectful,
but no link was made to complainant's protected classes.
With respect to the basis of disability, complainant generally asserts
that he should have been accommodated in taking his exam. Yet, he
fails to describe how his purported impairment/s impacted his ability to
take the exam and what kind of accommodation could have been utilized.
Further, complainant is even unclear as to what particular condition
related to the exam taking. The record includes references to a lifting
restriction, but a doctor's note indicates that the restriction was
temporary and removed. As for complainant's vision, co-worker's testify
that complainant has worn an eye patch. Complainant also refers vaguely
to memory loss, as a result of the aneurism, but never explicitly explains
how this related to his exam failures. Instead, in his response to the
agency's motion for summary judgment, complainant asserts that the only
reason he was decertified and unable to pass his tests was "because
management failed to schedule his exams before the expiration date."
Even assuming, for purposes of this decision, that complainant is a
person with a disability2 there is no evidence that complainant ever
requested an accommodation. Therefore, to the extent that complainant's
complaint may have alleged the denial of a reasonable accommodation,
the Commission declines to find this occurred.
The record does not reveal that similarly situated individuals, outside
complainant's protected bases were treated better than the complainant.
A document describing the failure rates for the employees in complainant's
facility reflect that no one else approached complainant's high rate
of failure.3 In turn, we find that it is reasonable that complainant's
decertification would affect his appraisals and WGI. Moreover, as noted
above, management provided legitimate reasons for the lower scores on
individual elements of his appraisal. Additionally, legitimate reasons
were proffered for the issuance of "971 Supplements" and the record
indicated that other employees outside complainant's protected classes
were also issued such counseling.
Since the agency has met its burden, of providing non-discriminatory
reasons for its actions, the complainant must show pretext.
The Commission finds that complainant has not done so. While, with
respect to some actions, complainant provides reasons or excuses for his
behavior, he has failed to show that the agency's reasons were pretext
to mask discriminatory animus toward his race, color, age, disability,
and prior EEO activity.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we AFFIRM
the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 26, 2008
Date
1 On March 28, 2008, complainant filed an appeal from the EEOC
Administrative Judge's (AJ) February 14, 2008 decision and explained that
the agency had failed to issue its final order within forty days of the
AJ decision. Thereafter, on April 29, 2008, the agency did issue its final
order, noting that it received the AJ's decision on March 20, 2008.
2 29 C.F.R. � 1630.2(g).
3 The "Employee's Certification Chart (2004-2006)" reflects that
complainant failed the FPI and X-ray exams five times. The majority of
other failures only occurred once or twice, with a now retired employee
and one new employee failing a three times.
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0120082086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082086