Mike T., Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency. Appeal No. 0120121877 Hearing No. 490-2011-00021X Agency No. 2010049 DECISION On March 23, 2012, Complainant filed an appeal from the Agency's February 24, 2012, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electrical Foreman at the Agency's Sequoyah Nuclear Plant in Tennessee. The Nuclear Regulatory Commission's (NRC) regulations require each individual authorized to work within a nuclear power plant to obtain and maintain "Unescorted Access Authorization." 10 C.F.R. § 26. Additionally, NRC requires the Agency to maintain a program for ensuring that all persons with the Authorization meet certain requirements to ensure that the plant will be operated in a manner that is designed to maintain public health and safety. This includes the Agency constantly monitoring employees' behavior to determine if an employee is experiencing mental or emotional difficulties, personal problems, or stress. If an employee is suspected of a behavioral issue the manager must remove that employee from the nuclear environment and the employee can only be returned to work after he or she has been determined to be fit to "safely and competently" perform his or her duties. On March 16, 2010, Complainant allegedly outright refused an order from two of his supervisors. Specifically, Complainant refused to participate in a "rep drill." On March 17, 2010, Complainant expressed to his Superintendent his dissatisfaction that a female coworker was placed in a temporary lead foreman position without the job opportunity being posted.1 The Superintendent told Complainant he would look into his concern. On March 18, 2010, Complainant raised the temporary lead foreman position issue during a meeting with the entire electrical shop crew. Complainant allegedly raised his voice in a disrespectful manner and refused to discuss the issue later. Complainant allegedly continued to yell and argue until the Superintendent had to cancel the meeting because no business could be conducted. On March 30, 2010, Complainant asked the female coworker who was placed in a temporary lead foreman position to come into his office for a discussion. Complainant told the female coworker that he was upset that she allowed management to place her in the position without anyone else having the opportunity to express an interest in the position. Complainant admitted to accusing the female employee of using her breasts and buttocks, sympathy for her daughter's illness, and sexually crude acts to get the position. The female coworker became scared when she realized the door was locked, and she left the office. Management began an investigation into Complainant's fitness to safely perform his duties as set forth by NRC regulations and Agency policy. Several of Complainant's coworkers reported past instances where Complainant had exhibited questionable behaviors. On April 11, 2010, Complainant was issued a letter notifying him that he was being placed in non-work pay status due to concerns about his behavior. Upon Complainant's return to work on July 6, 2010, both Complainant and the female coworker were asked if there was another area where they would like to work. Complainant stated that he did not want to return to the electrical shop, and as a result he was assigned work in the Maintenance group where he would have no need to enter the electrical shop. Complainant and the female coworker were told not to interact with each other. On July 6, 2010, the first day Complainant was back at work, he was given a warning letter for insubordination and unprofessional behavior for his refusal to report for a "rep drill" on March 16, 2010, and his disruptive and disrespectful behavior during the staff meeting on March 18, 2010. On May 25, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On or about April 11, 2010, his unescorted access authorization was pulled; 2. On or about April 11, 2010, he was placed in non-work pay status and required to complete a psychological evaluation; 3. He was given a warning letter dated July 6, 2010, for insubordination and unprofessional behavior in the workplace; and 4. On or about July 15, 2010, he was told by a superintendent and a Human Resources manager that he could no longer enter the electrical shop to perform work. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 29, 2011, motion for a decision without a hearing and issued a decision without a hearing on January 27, 2012. 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 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, 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"). Summary Judgment 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 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). After a careful review of the record we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. Further, even if we assume all facts in favor of Complainant, a reasonable fact finder could not find in Complainant's favor, as explained below. We find that no genuine issues of material fact exist that would require a hearing. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here we will assume without finding that Complainant established his prima facie cases of race, sex, religion, and reprisal discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was insubordinate to his management officials, he was disruptive and threatening during staff meetings, and he locked a female coworker in a room while he admittedly yelled at her and made crude sexual statements and accused her of using her body and the illness of her child to get ahead in the workplace. These incidents raised concerns regarding Complainant's trustworthiness and reliability, as well as his fitness to safely perform his duties. Because of these concerns, management began an inquiry his behavior in accordance with NRC regulations and Agency policy, and ultimately determined that action should be taken to remove him from the facility and have him undergo a fitness for duty examination before he returned to work. Upon his return Complainant chose to work outside of the electrical shop, and he was told to not interact with the female coworker he had the confrontation with. In the final step in the analysis, the inquiry moves to a consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of his race, sex, religion, or prior protected EEO activity. Complainant admitted to making the inappropriate sexual remarks to the female coworker, and he did not deny that he was insubordinate to his supervisors. As proof of pretext, Complainant identified other individuals who he alleged were treated differently. For example, Complainant alleged that a coworker (male, white, Christian) spoke in a threatening and disrespectful manner to a female coworker and received no discipline. However, the record indicates that this coworker also received a warning letter for inappropriate work place behavior. Another coworker (female, black, Christian) had her Authorization suspended, was required to go through the fit for duty process, and received a warning letter after she got into an altercation with another employee. Additionally, another female coworker (female, black, Christian) was suspended and held off the job for a period of time after she copied information from her supervisor's office without authority. We note that a coworker who also had her Authorization pulled after she was allegedly belligerent with another coworker stated that she believed that Complainant was discriminated against because of his race and religion because the electric shop staff are "closed mind [sic] to people who are different than they are." She also alleged that an email was once posted about Muslims, and that racist comments and jokes were made. However, she did not provide any proof to support these allegations, nor did she offer critical specific information such as who made the comments and jokes, who authored the email, when these incidents occurred, and anyone else who may have witnessed these incidents. Further, it is not clear from the record whether she was present in the workplace during the incidents in this complaint and whether her testimony would be relevant to the incidents in this complaint. Beyond Complainant's bare assertions and subjective beliefs, Complainant has failed to provide sufficient evidence that would establish by a preponderance of the evidence that the Agency's actions were based on Complainant's race, religion, sex, or reprisal for prior protected EEO activity. Hostile Work Environment Complainant also alleged that the Agency subjected him to harassment on the bases of race, sex, religion, and in reprisal for his prior protected EEO activity. To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). After a review of the entire record, we find that Complainant failed to establish a prima facie case of a hostile work environment. As discussed above, Complainant did not establish that any of the Agency's actions were because of his race, sex, religion, or in reprisal for prior protected EEO activity. Therefore, Complainant failed to establish that he was subjected to unlawful harassment. Fitness for Duty Examination Although Complainant did not allege a violation of the Rehabilitation Act in this case, we find that a determination of whether such a violation occurred is required by the facts. In this regard, we note the Commission's decision Complainant v. U.S. Postal Service, EEOC Appeal No. 0120120140 (May 1, 2014), which cites Grayson v. USPS, EEOC Appeal No. 0720080044 (January 6, 2009). In Grayson, an EEOC Administrative Judge (AJ) found a violation of the Rehabilitation Act when the agency ordered the complainant to undergo a fitness for duty examination. The complainant, in Grayson, however, had only alleged discrimination based on race (Black), sex (male), age (63) and retaliation pursuant to Title VII and the Age Discrimination in Employment Act of 1967. On appeal, among other things, the agency noted that the complainant had never raised a claim of disability discrimination. The Commission, however, upheld the AJ's finding of discrimination in violation of the Rehabilitation Act because (1) whether an employee is an individual with a disability is irrelevant to the issue of whether the agency properly required him to undergo a medical examination because the Rehabilitation Act's limitations regarding disability-related inquiries and medical examinations apply to all employees; and (2) the complainant's claim did not change and all the facts were sufficiently developed by both parties. Pursuant to our precedent, we find that it is appropriate in this case to also determine whether the Agency's actions violated the Rehabilitation Act even though Complainant did not allege such a violation. The Agency is not prejudiced by our decision because the facts in this matter are not in dispute and have been sufficiently developed. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120120140, supra. Employers may require a medical examination or make disability related inquiries of an employee only if the examination is job-related and consistent with business necessity. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000) (web version) (Guidance), at 5. This requirement is met when the employer has a reasonable belief, based on objective evidence, that (1) an employee's ability to perform the essential job functions is impaired by a medical condition; or (2) that an employee poses a direct threat due to a medical condition. See Guidance at 14. This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his/her job because of a medical condition. Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with his ability to perform essential job functions or will result in a direct threat. Id., p. 7. Where the employer forms such a belief, its disability-related inquiries and medical examinations are job-related and consistent with business necessity, if they seek only the information necessary to determine whether the employee can perform the essential functions or work without posing a direct threat to self or others. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. See Cerge v. United States Department of Homeland Security, EEOC Appeal No. 0120060363 (October 9, 2007). Here, the record reveals that the Agency had a reasonable belief based on objective evidence that Complainant may not be able to safely perform the essential functions of his job or that he posed a direct threat. Specifically, many individuals stated that Complainant's behavior and attitude abruptly changed in the workplace, which made his supervisors concerned for his ability to safely perform his job. Complainant became insubordinate, disruptive, and threatening with his supervisors and during staff meetings, and his behavior towards his coworker was threatening and harassing when he allegedly locked her in his office and made sexually crude comments. Agency policy requires a manager to remove an employee from the nuclear environment if an employee is suspected of a behavioral issue. Agency policy also requires that the employee can only be returned to work after he or she has been determined to be fit to "safely and competently" perform his or her duties. The specific facts of this case support the Agency removing Complainant from the workplace and having him perform a fitness for duty evaluation to determine whether a medical condition made Complainant unable to perform the essential functions of his job or whether he posed a direct threat to himself or others. 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 decision because a preponderance of the evidence of the record does not establish that discrimination existed as 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 November 14, 2014 __________________ Date 1 We note that there is no evidence in the record that Complainant alleged to the Superintendant that this direct placement was based on a discriminatory reason; rather he alleged that the direct placement without posting the vacancy resulted in a lack of opportunity for everyone interested in the position to inform management that they were interested. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120121877 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120121877