0120130408
10-08-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120130408
Hearing No. 480-2011-00441X
Agency No. HS-10-HQ001382
DECISION
On November 12, 2012, Complainant filed an appeal from the Agency's final order, dated October 22, 2012, regarding an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the relevant time, Complainant worked as a Program Manager, Chemical Detection Technology, GS-0301-15, in the Detection Division of the Health Threats Resilience Division, Office of Health Affairs in Washington D.C.
Believing that he was subjected to disparate treatment and a hostile work environment, Complainant filed a formal complaint based on race (African American) and/or prior EEO activity. The complaint, filed on February 3, 2010, was assigned Case No. HS-10-HQ-001382 (hereinafter "Case No. 001382). The following incidents were accepted for investigation:
(1) On October 1, 2009, Complainant received a verbal substandard performance rating from [Manager K].
(2) On October 27, 2009, Complainant had a change in first-line supervision from [Manager K] to Deputy Assistant Secretary (DAS) [H].
(3) On October 27, 2009, Complainant was directed to provide daily updates of activities and projected activities for the next day via e-mail to DAS [H]. If an in-person meeting was needed, the meeting had to be arranged through DAS [H's] secretary.
(4) Ongoing since October 2009, Complainant was told not to speak to [Manager K], which has led to Complainant being ostracized by other staff members. No one other than Complainant's two employees speak to him.
(5) On November 11, 2009, Complainant was denied a reasonable accommodation for his disability by DAS [H] when Complainant requested office space equivalent to his position as Program Manager.
(6) On unspecified dates, Complainant alleges he was forced to work in and endure a hostile environment, including: being called derogatory names, such as "bull in the china shop," "bully," and an "ass." In addition, Complainant alleged that he was assaulted by a government contractor; was not informed of meetings that have a direct impact on the program that he managed; was removed from critical e-mail lists to which he had formerly been a party; and did not have information shared with him about activities within the division of which he was a member, and which he supported.
Thereafter, on January 11, 2011, Complainant filed another formal complaint alleging a hostile work environment in reprisal for prior protected activity. This formal complaint was identified as Case No. HS-HQ-00312-2011 (hereinafter Case No. 00312-2011). The following events were presented in support of his claim, and were investigated:
(1) On August 24, 2010, the Deputy BioWatch Program Manager (BPM) responded to Complainant's request for a copy of a workshop agenda by counseling him on sending the electronic request with "high importance," and by informing Complainant: the workshop was for official use only; he did not have a need to know; and to follow the BPM's directions for doing his (Complainant's) work.
(2) Since August 26, 2010, and ongoing, Complainant is being subjected to a hostile work environment by his first-line supervisor, consisting of the following matters:
a. Complainant's work is highly and unnecessarily scrutinized; however, at the same time, he is not given any productive feedback;
b. Complainant is not given access to his supervisors;
c. Complainant is being socially ostracized in the office, as exhibited by unfriendly and hostile behavior;
d. Complainant was forced to provide a twelve (12) page self-assessment for his performance plan while other employees were not;
e. Complainant was not afforded the benefit of timely performance plans. This is the third year he has received goals and objectives in excess of 70 days after the close of the prior performance year;
f. Complainant has had duties removed, such as having had the employees who report to him removed from his supervision, and having not been given the level of work responsibility that is delineated for employees at the GS-15 grade level;
g. Complainant does not have access to his supervisors' calendars while other similarly situated employees do;
h. Complainant has received berating emails from his first-line supervisor; and
i. Complainant's work environment is causing him undue stress and aggravating his medical conditions.
(3) On August 31, 2010, Complainant's first-line supervisor did not respond to his request for annual leave.
(4) On August 31, 2010, Complainant's first-line supervisor verbally reprimanded him in the presence of two contractors, and almost ran into Complainant as he (supervisor) left the room.
(5) On September 3, 2010, Complainant's second-line supervisor approved his medical leave for the period of September 7-10, 2010, instead of the 30-day medical leave which Complainant had initially requested; and required Complainant to provide additional medical documentation before approving additional time without taking steps to ensure his privacy.
(6) On November 16, 2010, Complainant was issued a five (5) day unpaid suspension by his second-line supervisor.
Soon thereafter, Complainant submitted additional information and documentation. After reviewing the submissions, the Agency concluded that the additional events were an amendment to the January 2011 complaint. Consequently, the following events were also accepted for investigation:
(7) On January' 18, 2011, a letter was mailed to Complainant advising him that his access to classified information was suspended.
(8) On January 19, 2011, a Notice of Administrative Leave was given to Complainant, placing him on administrative leave with pay, effectively immediately.
(9) On January 19, 2011, a Notice of Proposed Indefinite Suspension was given to Complainant, proposing that he be suspended from duty and pay indefinitely, pending final adjudication of his eligibility for access to classified information.1
At the conclusion of two separate investigations, the Agency provided Complainant with a copies of the reports of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).2 Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's April 17, 2012 Summary Judgment Motion and issued a decision without a hearing on September 19, 2012. After setting forth numerous "undisputed material facts," the AJ concluded that there were "no genuine issues of material fact or credibility that require resolution at a hearing."
In analyzing the claims, the AJ found that Complaint either failed to establish a prima facie case, or that the Agency articulated legitimate, non-discriminatory reasons for its actions. Further, he found no evidence of pretext. The AJ concluded that the record did not support Complainant's claim that he was subjected to unlawful discrimination.
On October 22, 2012, the Agency issued a final order adopting the AJ's finding of no discrimination. Complainant filed the instant appeal.
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. 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).
In granting the Agency's Motion for Summary Judgment, the AJ found that the record had been adequately developed and there was "no need to make findings of fact or credibility." In support of his determination, the AJ set forth several "undisputed material facts." A review of the record, however, reveals that many of these material facts are, in fact, disputed by Complainant.
The first "undisputed material fact" noted by the AJ, was Complainant's "issues working with others." According to the AJ, in early 2009, Complainant and an OHA employee had a disagreement and subsequently were counseled. Manager K also attested that in 2009 he received complaints from various stakeholders regarding Complainant. Further, Manager K described witnessing a meeting between Complainant and the Office of Procurement where "there were tensions between Complainant and other employees."
The fact that Complainant and another employee were both counseled does not definitively show that Complainant was responsible for the disagreement. On appeal, Complainant contends that DAS H and Manager K "branded him as the problem employee" when in fact he "had worked with numerous businesses, government agencies, national laboratories, and consulting companies with considerable success." Further, the AJ appears to rely heavily upon statements from Manager K. Complainant argues that Manager K's credibility should be questioned in light of his admitted "aversion" to Complainant and issuance of a "meritless" evaluation.
The second "undisputed material fact", as determined by the AJ, concerned Complainant's performance rating. Specifically, the AJ noted that that when Complaint went to Manager K's office for the appraisal he "appeared angry", Manager K "felt threatened by Complainant's demeanor and asked him to leave his office." The AJ stated that soon after, "Complainant sent [Manager K] an email that [Manager K] considered inappropriate." Complainant argues that the rating issued by Manager K was discriminatory and improper, as evidenced by the Manager's later modification to a portion of his score.
Third, the AJ found it was "undisputed" that Complainant was removed from Manager K's supervision because Manager K felt threatened by Complainant and DAS H thought he was spending too much time trying to supervise Complainant. Further, the AJ stated that Complainant was "advised" that "he did not need to interact with [Manager K]. Regarding daily morning meetings, the AJ found that it was undisputed that Complainant was not included simply because he was not a division lead.
However, in contrast, Complainant contends that he was ordered not to communicate or interact with Manager K. He asserts that the other members of his team (two individuals that are also African-American) were also not to communicate directly with Manager K, even in the hallways. Complainant states that he was ostracized and his ability to complete his duties had an adverse impact. As to the morning calls, Complainant argues that he previously participated in the calls, but that he has been "inexplicably" excluded. On some occasions, Complainant asserts he has been told to listen in to the call, but not speak. He asserts this exclusion is not simply because he is not a division lead, but in reprisal for his EEO activity.
DAS H attested that after Complainant was removed from Manager K's supervision, he noticed that both Manager K and Complainant's work performance improved. Further, DAS H stated that after the change, Complainant commented that he was pleased to be reporting to the DAS. As noted above, Complainant counters that the absence of any communication with Manager K hurt his program since they shared numerous projects.
Similarly, DAS H attested that locating Complainant and his support team at the Vermont Avenue location was consistent with the location of programs before and after the instant matters arose. Complainant argues that his team is the only one located there and the decision was retaliatory.
Fourth, regarding the matter of medical leave, the AJ considers the Agency view of the matter as "undisputed material facts". Instead, Complainant contends that the AJ ignored his claims of reprisal. Specifically, that after the Agency notified him that he would be charged AWOL, his note was found to be sufficient for his medical leave request, and instead the Agency retaliated by proposing a five-day suspension.
Based on a review of the record, we find that the AJ did not draw justifiable inferences in Complainant's favor, choosing instead to credit the Agency's explanations for its action. Complainant has presented sufficient evidence to defeat summary judgment. We determine, as reflected in our above analysis, that there are simply too many disputed fats and issues of credibility to have issued a decision without a hearing. Moreover, the AJ failed to properly address the events set forth in Case No. 001382.
CONCLUSION
The Agency's final order is REVERSED and the matter is REMANDED to the Agency in accordance with this decision and the ORDER below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Washington Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the compliant file has been transmitted to the Hearing Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the compliant in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 8, 2014
__________________
Date
1 We note that the AJ's decision appears to confuse the case numbers and claims of the two complaints. The AJ correctly states that Case No. HS-10-001382 was filed on February 3, 2010. However, he then proceeds to identify the nine claims that were presented in the case filed in January 2011. Moreover, the AJ decision failed to identify the October 2009 through November 2009 events, from Case No. 00312-2011, in his decision.
2 The two cases were later consolidated.
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0120130408
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130408