Stan H.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0120150743 (E.E.O.C. Apr. 20, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stan H.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120150743

Hearing No. 570-2013-00743x

Agency No. AMS201201007

DECISION

On December 19, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 13, 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 adopting the
Equal Employment Opportunity Commission (EEOC) Administrative Judge’s (AJ) decision
finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-13
Management Analyst at the Agency’s Specialty Crops Inspection (SCI) facility in Washington,
D.C. On November 8, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), age (49), and
in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and
the Age Discrimination in Employment Act of 1967, when the Agency moved him from a
private office to a cubicle on September 20, 2012, and when it removed his supervisory

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.
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responsibilities, decreased his job duties, and changed his job title on October 7, 2012,
following a departmental reorganization.

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
requested a hearing. Over Complainant's untimely objections, the AJ assigned to the case
granted the Agency’s June 16, 2014, motion for a decision without a hearing and issued a
decision without a hearing on October 14, 2014, finding no discrimination. 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.

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 Complainant 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 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
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discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

In September 2012, Complainant’s office was changed because the Agency decided to move
staff that performed similar functions to share office space. Complainant was initially assigned
to Room X, which had new furniture, but he and his coworker with whom he was to share
office space (E1) complained that Room X was too noisy. Management then had another
workspace created for the two of them and they were reassigned to Room Y. Statements from
E1, management, and other employees who worked in the same building wing indicated that
the space, furniture (while not brand new), and the lighting in Room Y were comparable to
other offices. Complainant's second level GS-15 supervisor said Room Y was comparable to
his own office. Complainant did not present any evidence supporting his belief that the office
move was motivated by his race, sex, age, or prior EEO activity, especially since persons who
did not share his protected traits were also relocated and some of them also were dissatisfied
with their new space.

Similarly, Complainant did not present evidence establishing that the Agency’s removal of his
supervisory status and duties and change in job title constituted unlawful discrimination,
harassment, or reprisal. In 2012, the Agency approved a reorganization that consolidated the
Fresh Products Division and the Processed Products Division to form the Specialty Crops
Inspection Division, with an effective date of October l, 2012. Prior to the reorganization,
Complainant was a GS-13 Management Analyst in the Fresh Products Division. On January
20, 2012, a GS-14 manager who was to become Complainant’s first-level supervisor (S1)
informed Complainant that he would no longer have any supervisory responsibility after the
consolidation was approved. In August 2012, a new position description for Complainant's
Management Analyst position was approved and classified by Human Resources.
Complainant’s title was changed to Budget Analyst. Since Complainant’s EEO complaint
about his office relocation did not occur until September 2012, the Agency’s decision to
change his job title, status and duties could not have been an act of reprisal. Moreover, the
record reveals that one former supervisor who was older (than Complainant), White male had
his entire department dissolved and lost job duties associated with the seven employees he had
previously supervised. Additionally, S1, Complainant’s own first-level supervisor whom he
names as a responsible management official, had his 670 direct reports decreased to 11 after
the reorganization. Complainant has failed to produce any evidence of discriminatory animus.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final order adopting the
AJ’s finding of no discrimination.

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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.

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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

April 20, 2017
Date