0120150387
04-12-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harry A.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150387
Hearing No. 430201300396X
Agency No. 200406372013102017
DECISION
On April 11, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 2, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency subjected him to disparate treatment on the bases of race (African-American) and age (66) when it issued him a three-day suspension.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator, GS-0303-07, at the Agency's VA Medical Center, Health Administration Service (HAS), in Asheville, North Carolina.
On December 11, 2012,2 Complainant parked the wheelchair van in an emergency vehicle parking space. Two weeks earlier, the Chief, HAS (C1) and the VA Chief of Police (C2) had authorized Complainant to park the van there instead of in front of the building. When Complainant returned to the van that day, a VA Police Officer (O1) was writing a ticket. Complainant told O1, "You are wasting your ink because I am authorized to park there." O1 asked Complainant who had authorized him to park there. Complainant responded that C1 and C2 had authorized it, and recommended that O1 call them. O1 did not call them. O1 was not aware that C1 or C2 had authorized Complainant to park there. When Complainant got into the van, O1 asked him for his driver's license. Complainant asked, "Why do you need my license?" O1 then told Complainant to get out of the van. Complainant told O1, "I don't have time for this, there's a patient waiting for me that I have to take to South Carolina." O1 grabbed Complainant's jacket and tried to pull him out of the van. O1 called for backup and grabbed Complainant's arm. Complainant got out of the van and tried to call S2, but O1 did not let him. O1 put handcuffs on Complainant. O1 told Complainant that he would have cooperated if an Asheville police officer had asked for his driver's license. O1 dared Complainant to refer to him as a "security guard."
An Asheville police officer, who was on-site for an unrelated matter, came over and assisted O1. O1 put Complainant in the police vehicle and drove him to the police station. When they arrived at the station, O1 asked for Complainant's driver's license and wrote a courtesy violation. O1 asked Complainant what he would have done if he had been O1. Complainant responded that he would not have acted like O1. O1 drove Complainant back to the van. Complainant and O1 talked and ended up shaking hands.
On January 17, 2013, the Assistant Chief, HAS (AC) issued Complainant a notice of proposed five-day suspension for conduct unbecoming an Agency employee. Citing the December 11, 2012, incident, AC stated that Complainant refused to comply with O1's directions to provide his driver's license and to step out of the van. On February 20, 2013, C1 issued Complainant a decision suspending him for three days, effective March 8, 2013.3
On April 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and age (66) when it suspended him. 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 AJ. Complainant timely requested a hearing.
The AJ determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on September 8, 2014 finding no discrimination. Specifically, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for suspending Complainant; namely, he did not comply with O1's directions on December 11, 2012. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. The AJ noted Complainant's arguments that he should not have been suspended because: he was treated unprofessionally by O1 due to his race and age; and he tried to explain to O1 that he had authorization to park there, but O1 would not listen. The AJ, however, found that it was undisputed that Complainant refused to comply with O1's requests to provide his driver's license and to step out of the van. The AJ found that Complainant did not proffer any probative evidence, other than his own conclusory allegations, showing the Agency's reason was a pretext for discrimination.
The Agency subsequently issued a final order fully implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that we remand the complaint for a hearing. Among other things, Complainant argues that the motivations of O1, AC, and C1 are at issue and cites the following: he had authorization to park the van in the space; O1 escalated the matter rather than contacting C1 or C2 to confirm the authorization; and he was suspended "based on nothing more than the word of [O1] and on the vaguest of charges." Moreover, Complainant argues that he is entitled to put on his evidence that the situation was motivated by discrimination and that the AJ should not simply defer to the Agency in how it wishes to conduct discipline.
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), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ'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 EEO MD-110, Ch. 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 the Commission "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
AJ's Issuance of a 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 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review of the record, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the AJ's intent to issue a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that hhe was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
First, assuming, arguendo, that Complainant established a prima facie case on the bases of race and age, we find that the Agency articulated a legitimate, nondiscriminatory reason for suspending Complainant. Specifically, AC and C1 averred that, on December 11, 2012, Complainant refused to comply with O1's directions to provide his driver's license and to step out of the van. In addition, C1 averred that O1 was unaware that Complainant had authorization to park there.
Second, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason for suspending him was a pretext for race or age discrimination. Instead, Complainant's own words tend to support the Agency's reason. For example, Complainant's January 23, 2012, written response to the Agency's notice of proposed suspension reflects that: (1) O1 asked for his driver's license, he refused to provide the driver's license, and he responded, "Why do you need to see my license?"; and (2) O1 asked him to get out of the van, he refused to get out of the van, and he responded, "I don't have time for this, there's a patient waiting for me that I have to take to South Carolina." In addition, Complainant admitted in his affidavit that he "did verbally resist [O1's] actions." Although Complainant argues that he had authorization to park there, we find that this does not undermine the credibility of the Agency's reason. We emphasize that the Agency did not cite Complainant's lack of authorization as its reason for suspending him. Although Complainant argues that O1 should have contacted C1 or C2 to confirm the authorization rather than escalating the matter, we find no evidence in the record, other than his speculation, that O1's actions were related to his race or age. Although Complainant argues that he was suspended "based on nothing more than the word of [O1] and on the vaguest of charges," we note that, as explained above, Complainant's own words tend to support the Agency's specific reason for his suspension. Although Complainant argues that he is entitled to put on his evidence that the situation was motivated by discrimination, we note that he had the opportunity to do so during the EEO Investigation. Although Complainant argues that the AJ should not simply defer to the Agency in how it wishes to conduct discipline, we note that the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We find no evidence of unlawful motivation in this case.
CONCLUSION
The AJ's issuance of a decision without a hearing was appropriate. Complainant did not establish that the Agency subjected him to disparate treatment on the bases of race and age when it issued him a three-day suspension. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final order.
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
__4/12/17________________
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.
2 The description of the December 11, 2012, incident is based on Complainant's January 23, 2012, written response to the Agency's notice of proposed suspension.
3 Complainant averred that he only lost one day of pay because he was suspended from Friday-Sunday and he did not normally work on the weekends.
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