0120100539
12-13-2012
Oswaldo A. Cuevas, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Oswaldo A. Cuevas,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100539
Hearing Nos. 100-2005-00473X, 570-2006-00700X
Agency Nos. ARWRAMC04JAN0001, ARMEDCOM05JUN10115
DECISION
On November 13, 2009, Complainant filed an appeal from the Agency's October 14, 2009, 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., 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 Commission accepts it 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 in this case is whether the Administrative Judge (AJ) properly issued a decision without a full hearing which found that Complainant failed to demonstrate that he was subjected to discrimination as he alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Environmental Protection Specialist, GS-12 at the Walter Reed Army Medical Center, Directorate of Safety, Health, and Environment, Garrison Environmental Office (GEO) in Washington, D.C. On July 14, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (Native American), national origin (South American), disability, age (57), and reprisal when:
1. On June 15, 2004, he was given a three day suspension;
2. On April 21, 2004, his supervisor called the police on him;
3. On July 2004, he had to use 10 hours of leave in order to attend refresher training;
4. On July 26, 2005, he received a "Needs Improvement" performance appraisal;
5. On June 2005, he was cited for Absent Without Official Leave (AWOL);
6. On July 18, 2005, he received a notice of proposed suspension for thirty (30) days.1
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 and the AJ held a hearing on August 31, 2009, and September 1, 2009. The AJ issued a decision on September 16, 2009, following the completion of Complainant's case. The AJ found that Complainant had failed to show that he was subjected to discrimination and failed to demonstrate by preponderant evidence that his treatment was more severe than similarly situated employees outside of his protected class. In fact, the AJ determined that all of the evidence provided by Complainant was either conclusory with no evidence supporting Complainant's contentions or supported the Agency's arguments.
The AJ noted that even Complainant's witnesses' testimony supported the Agency's articulated nondiscriminatory reasons for its actions. For example, Colonel 1 testified that Complainant failed to both recognize the authority of his supervisor and therefore failed to compromise and cooperate with him to meet the program goals as the supervisor saw them. Complainant's coworker testified that neither Complainant's manager nor any other manager ever called the police on Complainant. The coworker also indicated that the supervisor was very demanding and was a difficult supervisor in his relationship with his employees, including but not limited to Complainant. Colonel 2 testified that Complainant was suspended for three days after a confrontation with a coworker. Colonel 2 explained that an investigation was conducted regarding the confrontation and witness testimony supported the coworker's version of events. Complainant was given a three day suspension to be effective over a three day holiday weekend so that Complainant would not suffer loss of pay. Colonel 2 also testified that no manager ever called the police on Complainant. Another coworker testified that she had her own difficult experiences with and observations of Complainant's workplace behaviors. All coworkers called by Complainant indicated that their supervisor was very demanding and difficult in his relationships with his employees, including but not limited to Complainant. Further, the AJ found that most of the actions taken by Agency officials about which Complainant complained did not constitute adverse employment actions. The AJ reasoned that no material change in Complainant's terms, conditions or privileges of employment resulted from any of these actions. The AJ determined that incidents complained of involved matters of personal conflict where there was no evidence of discrimination. The AJ noted that the record clearly showed that Complainant may not have necessarily liked his superiors and did not agree with their decisions and management style but Complainant's opinions about them were not actionable here. Therefore, based on the overwhelming evidence against Complainant's contentions, the AJ determined that a full hearing was not needed and he terminated the hearing and rendered a decision in favor of the Agency. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that this case contains several procedural irregularities which impeded his ability to prove his case. Specifically, he notes that the AJ interfered with his ability to present evidence, witnesses, medical records, and various supporting documents. He also suggests that the AJ was biased and had been influenced by the Agency because the hearing was suspended unexpectedly and capriciously and the AJ thereafter requested a uniformed policeman and a civilian security agent to be present throughout the hearing based on rumors and insularity. Complainant asserts that the AJ's decision is superficial and biased towards the Agency. Complainant also maintains that the AJ had made his decision regarding the case by the second day of the hearing.
Further, Complainant argues that the AJ erred when he found no discrimination. Specifically, although the AJ found that the supervisor was an abusive supervisor with most employees Complainant argues however, that he treated him worse than everybody else. Complainant asserts that for six years the supervisor tried to break him both mentally and physically. Complainant asserts that the supervisor was on a mission to fire all of the black employees and had gotten rid of six black employees. Further, Complainant argues that the Agency never produced any evidence with regard to all of the discipline that he was forced to endure. He contends that their decisions were based entirely on generalities and fabrications. Complainant contends the Agency subjected him to reprisal even after the Agency previously agreed in a settlement agreement that it would not subject Complainant to reprisal. Additionally, Complainant maintains that his three day suspension was based on some other employee's information. He contends that he was threatened with the police in April 21, 2004, because the supervisor did not want him to explain what was going on in the office to the auditor. He also maintains that other employees were not forced to take leave for mandatory training.
Complainant contends that his receiving a Needs Improvement performance appraisal was not discussed during the hearing because the AJ cancelled that day's testimony. Complainant maintains that he should not have received that rating and notes that since he left this facility all of his performance appraisal ratings have been Excellent and Superior. Further, Complainant notes that he was charged absent without leave (AWOL), when no other employee had ever been charged. Further, Complainant contends that the issue of his proposed suspension for thirty days was not covered during the EEO hearing. He contends that this material was scheduled to be covered but due to a cancellation by the AJ, he did not get the opportunity to demonstrate that this was an act of reprisal by the Agency.
In response, the Agency maintains that there are only two issues appropriate for discussion in this appeal, the first, is whether the AJ inappropriately requested security; and the second, is whether Complainant established a prima facie case and whether it was appropriate for the AJ to conclude the hearing after all of Complainant's witnesses testified, but before his supervisor testified. The Agency maintains that security was provided at the hearing because a witness told the AJ that she was afraid of Complainant. The Agency contends that Complainant was silent during the hearing regarding the matter of security and should not now be allowed to bring it up. Further, the Agency asserts that Complainant never cited any evidence which suggested any actual prejudice so therefore having security was a non-issue. Additionally, the Agency contends that Complainant did not list the supervisor as a witness. The supervisor was an Agency witness and as such Complainant did not have the right to call the supervisor at the hearing. The Agency argues that once Complainant's witnesses finished testifying, the time was ripe for the AJ to determine whether Complainant had established a prima facie case. The AJ determined that none of the witnesses provided evidence that Complainant was discriminated against. In fact, every witness supported the Agency's positions and based on that the AJ was correct in finding that Complainant did not establish a prima facie case.
The Agency also contends that Complainant attempts to introduce new evidence on appeal which should not be allowed.2
ANALYSIS AND FINDINGS
Procedural Issues
The Commission notes that the AJ sua sponte issued an order to stop the hearing following Complainant's presentation of his case. The AJ issued a decision which found that based on Complainant's case-in-chief he had failed to articulate a prima facie case of discrimination as to all of his protected bases. In his appeal, Complainant asserts that he was harmed by the AJ's decision to terminate the hearing because he was not allowed additional witnesses, not allowed to produce records that supported his case, and was not allowed to call his supervisor as a witness. Complainant also alleged that he was harmed when the AJ allowed the police and security to be present during the hearing.
The Commission finds that Complainant was not procedurally harmed by the AJ's actions. Specifically, the record shows that the hearing was stopped after Complainant was allowed to put on his case and was allowed to question all of the witnesses that appeared on his witness list. His supervisor had not been listed as a witness for Complainant. Further, regarding the records that Complainant claimed he was not allowed to submit the record shows that the AJ had previously ruled upon their submission and had found that Complainant had either failed to produce records after having been ordered to do so or the records he attempted to submit had been found to be redundant or irrelevant to the case. Moreover, the record indicates that security was requested for the hearing based on Complainant's behavior and the fact that witnesses expressed fear of him. The AJ also noted that based on Complainant's behavior he did not feel that it was safe to have Complainant and his supervisor in the same room. With respect to the matters raised by Complainant regarding the AJ's procedural rulings, we note that Administrative Judge's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ's rulings represented an abuse of discretion in these matters.
Notwithstanding the above, based on the fact that the AJ failed to address all of the accepted issues, the Commission has chosen to review this matter 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, at Chapter 9, � VI.B. (November 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 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").
Merits
In the instant case, the Commission finds that even if we assume arguendo that Complainant established a prima facie case of reprisal, race, national origin, and disability discrimination, the evidence shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to issue no. 1, Complainant was given a three day suspension because of a verbal altercation with a coworker where it was found that Complainant initiated the incident. With regard to incident no. 2, the evidence shows that no one ever called the police on Complainant. The record shows that with respect to issue no. 3, Complainant was docked 10 hours of leave in order to attend a refresher-training course because he refused to seek permission to take the course and he failed to ask his supervisor if he could take leave to attend the class. He just went to the training without notifying anyone.
With regard to issue no. 4, the record shows that Complainant was issued a "Needs Improvement" performance appraisal because he failed to follow his supervisor's instructions regarding making corrections to reports and amending his reports to add more information. The supervisor indicated that his reports were too short and when the supervisor requested additional information, Complainant refused to amend his reports. Colonel 2 also testified that she gave Complainant the opportunity to present his work to her so that she could review it to make her own determination regarding the quality of his work but Complainant never presented any information. With regard to issue no. 5, Complainant was charged AWOL when he again did not request leave. Finally, regarding issue no. 6, the record does not show that Complainant was ever actually suspended for 30 days.
To show pretext, Complainant argues that there was a plan to get rid of all of the black workers in the office. Complainant indicated that one by one black workers' left the office and he believed that he was next. He maintains that their departure was celebrated. He also contends that while his supervisor was a horrible supervisor and treated everyone poorly, he treated him worse than everybody else. The Commission finds that Complainant failed to demonstrate that any of the incidents were based on his protected bases. The record evidence clearly establishes that Complainant's supervisor was described as very demanding, very curt, and a difficult person for whom to work. Testimony from Complainant's coworkers indicated that the supervisor treated all of his employees badly and that none of them thought that Complainant was treated differently than any other employee. Complainant by all accounts has been described as easy to anger, hard to work with, combative and hostile most of the time. It is clear from the record that Complainant did not respect the supervisor's control over him and often disagreed with what the supervisor requested and expected, nonetheless, through all of the testimony Complainant failed to show that the above incidents or any of the issues in this complaint were because of his protected bases. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and Complainant has failed to show that the reasons were pretext for discrimination.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 found that Complainant failed to demonstrate that he was discriminated against as he 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
__12/13/12________________
Date
1 The AJ noted that there were approximately 44 separate issues accepted by the Agency for this consolidated complaint. The AJ however, found some of the claims redundant, vague and lacking in specificity and therefore the AJ accepted only six for hearing testimony. The Complainant does not dispute the summarization of the issues accepted. Accordingly, our decision will only address the above accepted issues.
2 Complainant maintained that after the sixth black person left, management celebrated with champagne. Complainant also alleged that Colonel 2 was too busy with work and her commute to keep up with what was going on in the workplace. Complainant argued that his supervisor knew that he had problems and therefore was attempting to make him "go postal." He also maintained that work reports that he completed were expunged in 1996 in order to harm him.
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0120100539
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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