Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency. Appeal No. 0120123143 Hearing No. 570-2011-00998X Agency No. HS-HQ-01243-2010 DECISION On August 7, 2012, Complainant filed a timely appeal from the Agency's July 3, 2012 decision 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 EEOC Administrative Judge (AJ) granted summary judgment and found no discrimination. The Agency adopted the AJ's decision. BACKGROUND In his complaint, dated August 24, 2010, Complainant alleged that the Agency discriminated against him on the basis of race (Black) when: 1. On April 7, 2010, he was subjected to harsher scrutiny than his co-workers following an aviation incident. 2. On April 16, 2010, he was removed from his J-Band detail assignment. Complainant worked as a Transportation Security Specialist at the Agency's Freedom Center. He began a detail in the Agency's National Operation Center (NOC) where he worked as a Senior Watch Officer (SWO). Complainant was removed from the SWO detail on April 16, 2010, following an incident that occurred on April 7, 2010 on board a flight to Denver, Colorado (Denver incident). Complainant alleges that he was treated differently from others who were involved in other incidents. In this regard, Complainant identified other alleged incidents, involving other SWOs, including an incident that occurred on a December 25, 2009 flight (Christmas Day incident) to Detroit, Michigan.1 At the time of the removal of his detail, Complainant's first level supervisor was the NOC's Deputy Director (S1) and his second level supervisor was the Acting Director, Operations Coordination Division (DCOD).2 Complainant was previously supervised by the NOC Director (PS), as reflected in a 2008-2009 performance evaluation. After the investigation, Complainant requested a hearing before an AJ. On April 13, 2012, the Agency moved for summary judgment. Complainant submitted a request to file a response out of time. The AJ denied the motion. In so ruling, the AJ noted that it was not until May 23, 2012, when Complainant made his request to file a response out of time, a response that should have been filed on May 1, 2012. The AJ granted the Agency's motion for summary judgment. In the decision, the AJ found that Complainant failed to establish a prima facie case of race discrimination because he failed to show that similarly situated employees outside of his protected group were treated more favorably by the Agency. Despite the finding that there was no prima facie case, the AJ also concluded that the Agency had articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show that there was a genuine dispute as to whether the Agency's reasons were mere pretext. The AJ also concluded that the record was devoid of any evidence that the Agency's actions were based on discriminatory animus and that because Complainant's assertions were uncorroborated and conclusory, the assertions were not enough to withstand a motion for summary judgment. The AJ found that Complainant failed to meet the requirements of the SWO position, despite having been mentored and trained; that even though he had been selected for the position, an SWO evaluation panel had found him not qualified; and that Complainant's supervisors had raised concerns about his decision-making abilities, his inability to manage complex, time-sensitive events, his writing skills, and his lack of effective communication skills and lack of comprehension of the relevance of occurrences. Also cited was the Denver incident for which the Agency asserted that Complainant failed to follow established Agency security procedures; failed to properly notify senior Agency leadership of the incident; and failed to notify the Agency's Deputy Director which resulted in the Deputy Director's unpreparedness in participating in a White House teleconference the night of the occurrence and which also resulted in the reassignment of the Director of Operations, Coordination and Planning and the issuance of a "reprimand" to the NOC Director. On appeal, both Complainant and the Agency submitted briefs arguing their positions. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when the AJ 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. Upon a de novo review of the record, the Commission finds that the grant of summary judgment was improper because there exists a genuine issue of material fact and, also, there exists issues of credibility. See 29 C.F.R. § 1614.405(a); see also EEOC Management Directive 110, Chapter 9, § VI.A(2) (Nov. 9, 1999)(providing that an administrative judge's decision to issue a decision without a hearing is reviewed de novo). A genuine issue of material fact exists concerning Complainant's performance which allegedly caused the detail to end. 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. The record contains Complainant's performance evaluation as a SWO from PS, his previous supervisor, and the then NOC Director, for the period October 1, 2008 through September 30, 2009, signed off on in late October 2009. The PS commented in the evaluation that Complainant had "excellent performance" in a highly visible leadership position. It also revealed that Complainant "quickly assimilated" the skills and capabilities necessary to perform as an SWO. The evaluation disclosed that Complainant "correctly applied" the standard operating procedures to manage major events and crises and that during major events, Complainant had performed "exceptionally well" in a "difficult and stressful" position and, also, in integrating NOC process with the "CAT" and interagency management teams. The evaluation also reflects that Complainant had exceeded expectations for many NOC goals and competencies and continued to improve daily. The evaluation also reflects that Complainant ensured timely shared situational awareness and trained his team to standard. Complainant is also described as "exceeding" the requirements for real-time, all-source fusion. As such, the PS's evaluation stands in contrast to the allegations of deficient performance urged by two supervisors on whom the AJ has relied. Complainant has proffered evidence regarding his recent performance which raises the question as to whether the Agency's articulated reason for ending his detail was pretextual and not the real reason for its actions. The AJ essentially made credibility determinations in favor of the Agency and against Complainant in the presence of conflicting statements and documentation concerning Complainant's performance. Also, there is no evidence in the record that explains the swift change in the work performance of Complainant whose work had as late as October 2009 been evaluated positively by the then NOC Director. The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has also recognized that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). Therefore, the grant of summary judgment was not proper. Finding that Complainant's performance was deficient meant that the AJ had to accept as true the statements of Complainant's new supervisors while discounting the other evidence regarding Complainant's performance. S1 stated in his affidavit that Complainant was not progressing despite having numerous one-on-one performance discussions with Complainant concerning his performance, including not progressing in the area of critical problem solving, difficulty recalling key Agency leadership names, and mispronouncing names. The DOCD stated in his affidavit that Complainant had frequent counseling and feedback from S1 but that he failed to perform to standards. The only written documentation, concerning Complainant's performance prior to the Denver incident, is electronic mail in the record. For example, the Agency pointed to a grammatical error that Complainant made. Specifically, in a November 4, 2009 reply electronic mail, S1 told Complainant that his message of the same date was "poorly written," and "[t]he grammar is unsat, [sic] that's the issue." Complainant had electronically mailed S1 the following mail: "I spoke with Don, [sic] he agreed and Mr. [A] appreciate [sic] it. DOS reported the incident and advised NOC will not change DOS reports."3 As support for Complainant's allegedly deficient performance, S1 also stated that between June 2009 and April 2010, he spent an "inordinate amount of time" coaching, teaching, and mentoring Complainant. S1's statements regarding Complainant's performance conflict with PS's evaluation of Complainant. PS described Complainant's performance during the September 2008-September 2009 rating period as being able to "quickly" assimilate the skills and capabilities necessary to perform as an SWO. The Agency also urges that it was the Denver incident coupled with deficient performance which led to the ending of Complainant's detail. Complainant explained that he followed the aviation notification protocol when the Denver incident occurred and that his behavior was in compliance with his responsibilities. He compared his performance in the Denver incident with the response that occurred and performance in the Christmas Day incident in which he was not involved as the SWO. In addition, an Assistant Senior Watch Officer (ASWO) stated in his affidavit that on the day of the Denver event, procedures were followed to the best of their abilities. He also opined that he would not classify Complainant as incompetent.4 In reaching the conclusion that Complainant's detail was also terminated because of his performance in the Denver incident, the AJ improperly weighed the evidence and accepted as true the Agency's explanation that, for example, no other SWO had mishandled a notification to the same degree that Complainant had done in the Denver incident; that Complainant was the only SWO who demonstrated such poor situation awareness; and that Complainant failed to meet established reporting timelines. Complainant submitted a chart showing a comparison in processes concerning the Denver incident, which the Agency maintains was of greater impact, vis a vis the Christmas Day incident. Complainant provided an electronic mail from the ASWO to S1, which compared the difference in the handling of the two incidents and indicated that the Denver incident conformed more closely to established timelines than the Christmas Day incident. In addition, there is evidence that the Denver incident was determined to have been unfounded as originally reported with no adverse results while the Christmas Day incident was a bona fide event. A material issue also remains as to whether Complainant was treated differently than similarly situated employees who were confronted with a similar event. Pignatello v. Dep't of Navy EEOC Appeal No. 01956769 (Aug. 11, 1997). Complainant has alleged that the Agency engaged in a pattern of race discrimination and disparate treatment including demotions and reassignments. S1 stated in his affidavit that no one else was disciplined or removed as a result of the Denver incident.5 During the investigation, Complainant identified names and incidents when disparate treatment allegedly occurred. In this regard, Complainant cited incidents in his affidavit and produced a chart to which we have previously referred and which identifies names and specific incidents that occurred but for which no action was allegedly taken against the SWOs. With the exception of one, it appears that all other SWOs in the chart were outside of Complainant's racial group. Complainant also cited other incidents in addition to the incidents identified in the chart. However, there is no information regarding the impact of the incidents when compared to the Denver incident which would clarify why no action was taken not only against the only other Black SWO but, also, the White SWOs.6 The Agency is in the best position to provide information regarding the outcome of actions taken by management regarding the occurrence of similar incidents involving other SWOs. Such information was not provided.7 Only the Christmas Day incident was addressed by Complainant and the DOCD. The DOCD could not remember any specifics about the other events identified by Complainant and S1 provided a blanket denial, without elaboration, stating that none of the SWOs had demonstrated poor situational awareness, failed to meet established reporting timeliness, or failed to recognize missing leadership. The Agency has maintained that the Denver incident and the Christmas Day incident were of greater impact and this difference accounted for the different outcome in treatment. Complainant described the Christmas Day incident as worse than the Denver incident; but, according to Complainant, management did not reassign personnel. Management also took no action to correct NOC processes. Complainant also reported that procedures for timely reporting requirements were not achieved in the Christmas Day incident and communications failed to achieve standards. Although the Commission recognizes that agencies have broad discretion to set policies and carry out personnel decisions and should not be second guessed by a reviewing authority, this recognition is subject to the condition that discriminatory animus be absent. Complainant has described his supervisors as never supporting him fully. According to him, when he asked his supervisors for clarification to implement directives, they were insensitive to his requests and refuted, dismissed, and disregarded his concerns. He also stated that management did not demonstrate the same behavior toward his colleagues. The Commission also notes that when Complainant's name was presented to work as a SWO, S1 had objected to Complainant's qualification as an SWO along with two other SWOS when he sat on a panel.8 The Commission also notes that the then NOC Director rejected the recommendation of the panel not to qualify Complainant. The record contains a work force profile of the NOC as of April 2010. Of 375 employees, 283 are White. There are 49 Black, 26 Hispanic/Latino, 15 Asian, and two Native American/Alaskan employees. Complainant stated that there was one other Black SWO besides him and that there were SWOs who did not want to see him in a leadership position because of his race. In this regard, the Commission notes that although evidence of pretext viewed in isolation may not be sufficient to establish pretext, viewing a combination of factors can be probative of intentional discrimination. In sum, the AJ's grant of summary judgment was error. "Truncation of [the hearing] process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation" of his claims. Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). There are simply too many unresolved issues which require an assessment as to the credibility of management officials, co-workers, and Complainant and which require the determination whether discriminatory animus, a factual finding, was the real reason for the Agency's actions. Therefore, judgment as a matter of law for the Agency should not have been granted. CONCLUSION After a careful review of the record, including arguments not specifically referenced, the Commission VACATES the Agency's decision and REMANDS the matter to the Agency in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Washington Field Office Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 July 2, 2015 __________________ Date 1 The Denver incident involved the claim that a passenger with diplomatic status allegedly attempted to light his shoe on board a flight. The Christmas Day incident involved an alleged bombing concern aboard a flight. 2 S1's affidavit reflects that he was appointed Acting Deputy Director in January 2010, and named permanently to that position on April 25, 2010. The DOCD indicated in his affidavit that he was the NOC's Acting Director in April 2010 and, as such, Complainant's second level supervisor. It is unclear from the record how S1 would have been supervising Complainant prior to assuming the Acting Deputy Director position or if the DOCD was supervising Complainant prior to April 2010. 3 As noted previously, it is not clear whether Complainant was being supervised by S1 in November 2009, because S1 stated in his affidavit that he did not begin the supervisory position until January 2010. 4 In his affidavit, S1 stated that Complainant's ASWO had approached NOC leadership beginning in January 2010 requesting that Complainant be reassigned because he was not performing up to standards. The ASWO or other co-workers who allegedly brought complaints concerning Complainant's performance to S1 were not identified nor were affidavits taken. 5 The DOCD stated in his affidavit that the Director of Operations Coordination and Planning was re-assigned in part due to Complainant's handling of the Denver incident. 6 The DOCD's affidavit reflects that when asked about Complainant's contention that other named SWOs had had similar problems, the DOCD's response was that he did not recall the specifics of the cases but at the same time, it was his recollection that none of the incidents were mishandled to the degree of the Denver incident. 7 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). The hearing process is intended to be an extension of the investigative process. 8 The racial composition of the panel is not known; nor is it known how many Blacks were rejected or had to retake the test as opposed to Whites. The panel's rejection of Complainant appears to have remained on S1's mind, although Complainant was ultimately selected by a higher level manager. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120123143 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120123143