0120064304
06-19-2007
Gilbert Schlehman, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Gilbert Schlehman,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120064304
Hearing No. 210-2005-00260X
Agency No. 200518833FAA04
DECISION
On July 11, 2006, complainant filed an appeal alleging employment
discrimination in violation of 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 Administrative
Judge's finding of no discrimination.
ISSUE PRESENTED
Whether complainant was discriminated against on the basis of age (DOB:
05/29/38), when he was suspended for three days, effective October 6 -
October 8, 2004.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
an Electronics Technician at the agency's Elgin Environmental Systems Unit
facility in the DuPage System Support Center located in Elgin, Illinois.
Complainant was issued a notice of proposed suspension by letter dated
August 5, 2004. The letter written by his supervisor provided two reasons
with four specifications. The letter indicated, in pertinent part, that:
This is notice that I am proposing to suspend you for three (3) calendar
days for the following reasons:
Reason One: Disruptive behavior in the workplace that endangers personal
safety.
Specification One: On June 24, 2004, while performing a site clean up, a
damaged printer had been thrown away. You picked it up ... and proceeded
to throw it on the floor, causing parts and pieces of the printer to fly
all over the floor. I told you your behavior was inappropriate, not to
do something like that again, and that you could have injured someone.
You then took the largest remaining piece of the printer and threw it
a second time, causing more pieces to fly around the area.
Reason Two: Insubordination and refusal to carry out orders given by
a superior official.
Specification One: On June 23, 2004, I informed the unit that the GSA
truck was not to be used. Contrary to my instructions, you took the GSA
truck loaded with the tower equipment, and proceeded to pick up parts.
Specification Two: On July 2, 2004,...I noticed you were outside the
perimeter fence removing large stones... I directed you to stop removing
the rocks and return the rocks to the base of the fence immediately.
When I returned to the facility, I entered the unit office and found
you sitting and watching television. I asked if you had replaced the
stones and you replied you had not.
Specification Three: On July 12, 2004, I assigned you the task
of mounting these two eyewash stations. You installed one that day
without assistance, however you mounted the eyewash station next to a
high voltage Uninterrupted Power Supply creating an unsafe condition.
On July 13, 2004, I instructed you to immediately remove this eyewash
station and move it to a safe location. Still the task was not completed.
On July 14, 2004, I contacted you to check on your progress. Again I
was informed that the task was not completed.
On November 5, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of age. He maintained that the
reasons provided for his suspension were inaccurate and the real reason
behind his suspension was that his supervisor wanted him to quit or be
terminated so that they could get "new blood." Complainant maintained
that coworkers under the age of forty were treated more favorably.
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 Motion for Summary Judgment and issued
a decision without a hearing on May 17, 2006. When the agency failed to
issue a final order within forty days of receipt of the AJ's decision,
the AJ's decision finding that complainant failed to prove that he was
subjected to discrimination as alleged became the agency's final action
pursuant to 29 C.F.R. � 1614.109(i).
The AJ found that the agency was entitled to summary judgment as there
were no issues of material fact or credibility issues in dispute.
According to the AJ, the record showed that complainant was issued a
notice of proposed suspension for disruptive behavior in the workplace
and insubordination for refusal to carry out orders given by a superior
official. The AJ determined that complainant had failed to establish
a prima facie case of age discrimination because he failed to show that
similarly situated coworkers not of his protected group were treated more
favorably. Specifically, the AJ found that there were two comparators
that complainant offered as younger workers who were not disciplined.
One, age 32, was discovered sleeping and the second comparator, age 44,
often came to work late. The AJ determined that the comparators engaged
in minor infractions while complainant had engaged in disruptive behavior
and insubordination.
Notwithstanding, the AJ found that even assuming arguendo, that
complainant established a prima facie case of age discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions,
namely, the agency had cited one incident of disruptive behavior and
three incidents of insubordination as reasons for issuing the three
day suspension. Complainant argued that the computer equipment was
dropped because he had been trained how to dispose of obsolete government
equipment. Complainant maintained that the computer equipment was wrapped
in bubble wrap and that the pieces were contained. The AJ also found
that the evidence supported the agency's articulation with respect to the
incidences of insubordination. The AJ found that complainant failed to
provide any evidence or point to anything in the record that demonstrates
that the agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant asks that the Commission reverse the AJ's decision
based on inaccurate interpretations of fact and law. Complainant contends
that his supervisor treats employees over the age of 40 less favorably
than employees under the age of 40. He indicates that his supervisor
has been known to make comments illustrating how he feels about older
employees in the workplace, many times indicating that "we have got to get
some new blood in here." Complainant contends that two younger employees
(his comparators), have engaged in conduct in violation of the Standard
of Conduct, yet no action has been taken against them.
Moreover, complainant contends that the supervisor's contention that
complainant endangered other employee's personal safety when he dropped
the computer equipment is unfounded, as the original wrapping was on
the equipment and no other employees were in the vicinity. Further,
regarding the alleged insubordination for using the GSA truck after
being instructed not to, complainant contends that he was never actually
instructed not to use the truck. He contends that a person acting for
his supervisor gave him permission to use the truck. With respect to his
failure to move the stones, complainant contends that he was assisting
a coworker and when the supervisor told them to put the stones back
the coworker indicated that because this was his project, he would put
the stones back. Complainant contends that he never refused to obey the
supervisor's order, he just returned to the break room because he thought
the other person was going to return the rocks. Complainant maintained
that once the supervisor confronted him in the break room and asked him
to return the rocks, he did.
Finally, complainant maintained that the facts surrounding his alleged
insubordination for failing to move the eyewash station are in dispute.
Complainant contends that the eyewash unit fully assembled weighed
over 100 pounds. He contends he was waiting for assistance with
the installation of the eyewash unit and that is why he did not act
immediately. Complainant maintains that he was not aware of any time
restraints regarding the installation of the unit.
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). Based on
a review of the file, the Commission finds that the AJ appropriately
issued a decision without a hearing, as complainant failed to proffer
sufficient evidence to establish that a genuine issue of material fact
exists such that a hearing on the merits is warranted. Specifically, the
Commission finds that the AJ made certain that: the investigative record
was adequately developed; there were no genuine issues of material fact;
and there were no findings of fact made by weighing conflicting evidence
or assessing witness credibility.
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we agree with the
finding of no discrimination. Specifically, we find that even if
complainant established a prima facie case of age discrimination,
the agency's articulated legitimate nondiscriminatory reasons are
supported by the record. Complainant does not deny that any of the
events occurred; he merely offered an explanation for his actions in
his contentions on appeal. There is no evidence in the record that he
shared this information at the time of the incidents. Further, we find
that the record indicated that complainant has been insubordinate in
the past to the point where his removal was considered. Moreover, the
Commission finds nothing in the record that indicates that complainant's
age was considered or that it was the motivating factor in issuing
the suspension.
Additionally, with respect to complainant's argument on appeal that two
younger employees have committed acts but have not been disciplined, we
agree with the AJ's finding that the severity of falling asleep on the
job and being late for work is not the same as possibly hurting someone
with computer equipment or defying direct orders without explanation.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to affirm the final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
___6/19/07________________
Date
2
0120064304
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120064304