0120110406
10-19-2012
Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120110405,
0120110406
Hearing Nos. 531-2008-00148X,
531-2008-00149X1
Agency Nos. 07-00167-01928,
07-00167-01520
DECISION
On October 11, 2010, Complainant filed appeals from the Agency's September 21, 2010, final order2 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeals pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant had not established that the Agency discriminated against him based on his national origin, age, or in reprisal for previous EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Scientist, ND-1310-04, at the Naval Surface Warfare Center (the Activity) in Carderock, Maryland. On April 14, 2007, Complainant filed an EEO complaint (complaint # 1) (Agency No. 07-0167-01520, Appeal No. 0120110406), alleging that the Agency discriminated against him on the bases of national origin (Russian), age (52), and in reprisal for prior protected EEO activity arising under Title VII, and the ADEA when:
1. on February 7, 2007, he was issued a Notice of Indefinite Suspension of Access to Classified Information and Assignment to a Sensitive Position; and
2. on February 22, 2007, management denied his request for Leave without Pay (LWOP);
On June 7, 2007, the Agency issued a Notice of Acceptance for Investigation and Dismissal of Claims for complaint #1, in which it accepted the above two listed claims, and dismissed three other claims listed in complaint #1. The dismissed claims were that Complainant had been discriminated against when: a) in January 2007, the Secretary of the Navy failed to respond to his January 4, 2007 e-mail; b) on March 8, 2007, the Agency failed to remove the Agency representative from representing the Agency in Complainant's EEO cases; and c) on February 6, 2007, he learned that he was not selected, assigned, or promoted to an ND-5 Engineer position in Code 24 under vacancy announcement VA#NE6-ND-XXXX-OC-4G470155-C. The Agency dismissed the claims citing various parts of 29 C.F.R. � 1614.107(a), including failure to state a claim, abuse of process, stating the same claim as in a previously filed complaint, mootness, and alleging dissatisfaction with the processing of a complaint.
On June 1, 2007, Complainant filed a second complaint (complaint #2) (Agency No. 07-0167-01928, Appeal No. 0120110405), alleging that the Agency discriminated against him on the bases of national origin (Russian), age (52), and in reprisal for prior protected EEO activity arising under Title VII, and the ADEA when:
3. on April 9, 2007, he was issued a Decision on Notice of Proposed Indefinite Suspension in a non-duty, non-pay status beginning on April 15, 2007; and
4. in April 2007, he was not selected, assigned or promoted to an ND-5, Engineer (Program Manager) position, under vacancy announcement VA# NE7-ND0855-05-4G630058-C.
On June 14, 2007, the Agency issued a Notice of Acceptance for Investigation and Dismissal of Claims for complaint #2, in which it accepted the above two listed claims, and dismissed four other claims listed in complaint #2. The dismissed claims were that Complainant had been discriminated against when: a) from March 2007 through May 2007, his Agency Chain of Command from Branch Head to the Secretary of the Navy failed to respond to his various correspondence; b) in April 2007, he was not selected, assigned or promoted to an ND-5, Engineer position, under vacancy announcement VA# NE7-ND-XXXX-05-4G583558-I; c) in April 2007, he was not selected, assigned or promoted to an ND-5, Engineer position, under vacancy announcement VA# NE7-ND-0830-05-4G610777-C; and d) in April 2007, he was not selected, assigned or promoted to an ND-5, Engineer position, under vacancy announcement VA# NE7-NDXXXX-05-4G30393-I. The Agency dismissed the claims citing various parts of 29 C.F.R. � 1614.107(a), including failure to state a claim, abuse of process, and stating the same claim as in previously filed complaints.
The Agency consolidated the two complaints for a joint investigation. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On June 24, 2008, the Agency submitted its Motion for Summary Judgment (decision without a hearing). On July 14, 2008, Complainant submitted his response in opposition to the Agency's Motion, in which he argued that summary judgment was not appropriate. The Agency filed a reply to Complainant's opposition on July 18, 2008, and Complainant filed a sur-reply on July 28, 2008. On September 1, 2009, the Agency filed a Motion to Dismiss Complainant's hearing, based on the filing of a civil action in U.S. District Court. Complainant opposed the Motion on September 13, 2009, in which he argued that his civil action and the matters contained in the instant complaints were not identical and his hearing requests should not be dismissed. The Agency filed a reply to Complainant's opposition on September 16, 2009.
The AJ issued a decision without a hearing on August 6, 2010. In her decision, the AJ found that a decision without a hearing was appropriate, as no material facts were in dispute, and no issues of credibility needed to be resolved in order to reach a decision. The AJ found the following facts: On February 2, 2007, the Commander of the Activity issued Complainant a Notice of Intent to Suspend Access to Classified Information and Assignment to a Sensitive Position, based on numerous allegations of falsification of records, misrepresentation of work performed, and false statements made to supervisors, among other allegations. The Suspension was to be indefinite in duration, pending a final clearance determination by the Department of the Navy Central Adjudication Facility (DONCAF). Complainant requested documents on which the allegations were based and a thirty-day extension to respond. On February 7, 2007, he was issued a Notice of Indefinite Suspension of Access to Classified Information and Assignment to a Sensitive Position; Complainant's request for documents and an extension were denied. On February 12, 2007, Complainant requested that he be put in LWOP status until such time as a final determination was made on his access to classified information.
On February 15, 2007, Complainant was issued a Notice of Proposed Indefinite Suspension, pursuant to Complainant's suspension from access to classified information; the record reflects that Complainant's duties could not be performed in the absence of access to classified information. On February 22, 2007, Complainant's request for LWOP was denied. Complainant wrote numerous letters to various Agency personnel up the chain of command asking that the LWOP decision be overturned. Complainant also requested an extension of time to respond to the Notice of Proposed Indefinite Suspension; an extension was granted until March 30, 2007. On April 9, 2007, Complainant was issued a Decision on Notice of Proposed Indefinite Suspension, suspending him from work in a non-duty, non-pay status indefinitely, beginning on April 15, 2007.
Complainant's Decision on Notice of Proposed Indefinite Suspension advised him of the right to appeal the Decision to the Merit Systems Protection Board (MSPB), or to file an EEO complaint. Complainant filed an individual right of action appeal with the MSPB to consider his whistle-blowing allegations.3 Complainant also appealed his indefinite suspension to the MSPB. The MSPB found that Complainant's indefinite suspension was properly based on the suspension of his access to classified information, and that its review was confined to whether the Agency had followed due process procedures when suspending the security clearance. On September 15, 2009, the U.S. Court of Appeals for the Federal Circuit upheld the MSPB's denial of Complainant's appeal of his indefinite suspension.
In April 2007, Complainant became aware that he was not selected for an Engineer (Program Manager), ND-5, position. The selecting official stated that Complainant had not responded to messages left on his work telephone and e-mail regarding an interview for the position. At the time, Complainant was suspended from work at the Activity and had no access to his work telephone or e-mail. The selecting official also testified that the selectee had superior qualifications for the position.
In her conclusions of law, the AJ assumed that Complainant had established his prima facie cases of discrimination on all bases. The AJ concluded that Complainant could not prove by a preponderance of the evidence that the process to suspend his access to classified information and assignment to a sensitive position was applied in a discriminatory manner; the AJ noted that the MSPB and the U.S. Court of Appeals for the Federal Circuit had already concluded that the Agency had provided Complainant with the due process required when his security clearance was suspended. The AJ also found that the Agency had provided legitimate, non-discriminatory reasons for Complainant's indefinite suspension from duty, namely, that his access to classified information and a sensitive position had been suspended, and without that access Complainant was unable to perform the functions of his position. As it had already been found that the Agency had followed due process to suspend his security clearance, she then concluded that the suspension from duty was an appropriate consequence of that suspension.
The AJ found that the Agency had articulated legitimate, non-discriminatory reasons for denying Complainant's request to be placed on LWOP while the decision to suspend his security clearance was reviewed. She also found that the Agency had articulated legitimate, non-discriminatory reasons for not selecting Complainant for the ND-5 Engineer (Program Manager) position in April 2007, namely, that Complainant had not responded to attempts to contact him for an interview, and that the best qualified candidate for the position had been selected. Finally, the AJ concluded that Complainant could not show that the Agency's reasons for the suspension of his security clearance, his suspension from duty, denial of LWOP, or his non-selection for the position of Engineer (Program Manager) were pretext for discrimination.
Complainant filed a Motion to Reconsider the Decision with the Supervisory AJ in the Baltimore Field Office on August 23, 2010, in which he claimed that the AJ's decision had been wrongly decided, and in which he accused the AJ of improper actions and the Agency Counsel of fraudulent representations and assertions. The Agency filed an opposition to Complainant's Motion on August 24, 2010. On September 8, 2010, the Supervisory AJ issued an Order Denying Complainant's Motion to Reconsider. In her Order, the Supervisory AJ noted that Complainant had been repeatedly put on notice that he was not to use "vituperative language about the Agency representative" and that his Motion to Reconsider contained the same sorts of unfounded accusations with respect to the AJ. The Supervisory AJ admonished Complainant for his use of such language about the AJ. In the Order, the Supervisory AJ stated that Complainant was "hereby placed on notice that he is prohibited from engaging in such accusations against any Administrative Judge assigned to any case in the Baltimore Field Office, or any Agency representative. Violations of the Order will result in sanctions, including his dismissal of his request for hearing." She denied Complainant's Motion to Reconsider.
On September 23, 2010, 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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In his statement in support of his appeal, Complainant argued that the AJ had incorrectly issued a decision in the Agency's favor in his complaints. He repeated the same accusations against the Agency Counsel and the AJ which drew the admonishment from the Supervisory AJ. He delineated his long history of filing EEO complaints against the Agency, and his belief that he was a long-standing victim of discrimination. In its brief in opposition to Complainant's appeal, the Agency argued that the AJ's decision was fully supported by the record, and that the Commission should affirm the AJ's decision and the Agency's implementation 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. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 Chap. 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
The Agency's procedural dismissals
In each complaint, the Agency dismissed one or more of Complainant's claims under various parts of 29 C.F.R. � 1614.107(a). We have reviewed the Agency's procedural dismissals in each instance and find that the Agency correctly determined that the claims in question should be dismissed.4
Decision without a hearing
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. There was no need to resolve issues of credibility. Complainant filed an opposition to the Agency's Motion for Summary Judgment, which was considered by the AJ. We find that a decision without a hearing was properly issued.
Disparate treatment
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 or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that he was discriminated against as alleged. The AJ concluded that the Agency had not discriminated against Complainant in its decision to suspend his access to classified information and assignment to a sensitive position. She noted the decision of the MSPB on the same matter, noting that the MSPB and the Commission are constrained from being able to review the substance of a security clearance suspension, and are restricted to reviewing whether the Agency afforded Complainant due process or acted in a discriminatory manner when suspending the security clearance. As the decision to suspend Complainant's access to classified information had not been made in a discriminatory manner, the AJ properly concluded that the decision to indefinitely suspend Complainant was also not discriminatory, as Complainant was unable to perform his duties in the absence of a security clearance. We also find that the Agency had articulated legitimate, nondiscriminatory reasons for Complainant's non-selection, and for denying his request for LWOP, and that Complainant has not shown those reasons to be pretext for discrimination.
Future possible sanctions
Finally, we note our support for the Order of the Supervisory AJ, issued on September 8, 2010, in which she admonished Complainant for his use of inflammatory language with respect to the AJ and the Agency Counsel. Complainant has consistently flouted Orders from various AJs in the Baltimore Field Office to refrain from attacks on the Agency Counsel and on the AJs. We have previously affirmed the decisions of the AJs in their respective cases to dismiss Complainant's hearing requests, and remand for a final agency decision on the record, when he failed to use respectful language when arguing the merits of his complaints. See Y. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120110398, 0120110400, 0120110401, 0120110402, 0120110403, 0120110404 (Jan. 27, 2012); Y. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120113931-0120113936 (Oct. 11, 2012). Complainant is reminded that it is possible to be an effective advocate for his own position without disparaging the character of the other parties involved, and that he is better served by showing some restraint in that regard. Complainant is put on notice that we will not hesitate to affirm dismissals of hearing requests for any of Complainant's pending complaints if he continues to use such disrespectful language and to make unfounded accusations against Agency Counsel and Commission AJs.
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 order, which implemented the AJ's finding that Complainant did not establish that he was discriminated against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 19, 2012
Date
1 We note that there is a discrepancy in the Hearing Nos. used for the instant two complaints. The Acknowledgment and Order issued by the Administrative Judge (AJ) listed the numbers as captioned above, while the AJ's decision listed Hearing Nos. 531-2008-00147X and 531-2008-00148X.
2 Although the Agency issued a single final order regarding both complaints, Complainant appealed the final order separately as to each. The appeals are consolidated herein for purposes of judicial economy.
3 The MSPB issued a decision in which it denied jurisdiction. Complainant filed a petition for review with the Commission. The Commission's decision found that as the MSPB denied jurisdiction, there was no substantive decision on Complainant's claims of discrimination which could be reviewed, and that the Agency should continue to process Complainant's claims as non-mixed. Yuri J. Stoyanov v. Dep't of the Navy, EEOC Petition No. 0320080028 (Mar. 4, 2008).
4We note that we have previously affirmed the Agency's dismissals of Complainant's complaints of discriminatory non-selections for abuse of process in Y. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120110604, 0120111454, 0120111991 (Apr. 20, 2011); Y. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120113142, 0120113817, 0120114019 (Dec. 6, 2011); and Y. Stoyanov v. Dep't of the Navy, EEOC Appeal No. 0120100479 (Dec. 28, 2011).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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