Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 0120132641 Hearing No. 531-2012-00233X Agency No. HS-11-FEMA-00046 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's June 19, 2013 final action 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. BACKGROUND During the period at issue, Complainant worked as a Human Services Specialist at the Agency's Federal Emergency Management Agency (FEMA) facility in Hyattsville, Maryland. Complainant worked in a call center conducting telephone interviews with victims of federally declared disasters filing for disaster relief. On January 7, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), religion (atheist), disability and age (65) when he was subjected to ongoing harassment and eventually terminated. In support of these claims, Complainant alleged that: 1. On or about September 2, 2010, he was pulled out of a FEMA training class for an interrogation statement, the interrogation statement was recorded incorrectly, he as prejudged and perceived as guilty. 2. On September 27, 2010, he was called into a meeting and told he would be punished for his behavior on August 22, 2010 for violence in the workplace. 3. On September 30, 2010, he was denied the opportunity to finish eating his lunch to manage his diabetic condition before he was called into a meeting where federal inspectors told him that he was being placed on non-pay/non-leave status and he was escorted from the premises. 4. He was not permitted to perform higher level duties in his field of credential work although similarly-situated co-workers were assigned these duties. 5. On several occasions, despite his request, his supervisor refused to speak with his co-workers and ask them to speak in a normal tone of voice instead of shouting. The supervisor referred to Complainant as a "grumpy old man." 6. On November 17, 2010, he was served with a Notice of Termination. 7. On or about December 22, 2010, his appeal of the Notice of Termination was denied. After an investigation into his allegations, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On April 22, 2013, the AJ issued a decision by summary judgment in favor of the Agency. In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. On August 22, 2010, Complainant and a male co-worker were involved in a heated exchange which was witnessed by Complainant's supervisor (African American). According to Complainant's statement, Complainant went to his supervisor's work area to complain about the co-worker for making "loud and rude" noises ("grunting guffaws") while Complainant was talking on the telephone to an applicant. Complainant stated that when he asked the coworker to be quiet, the coworker responded by shouting that Complainant had no right to ask him to stop the noise. It is undisputed that the coworker then followed Complainant to the supervisor's cubicle and stood next to Complainant, who was in the entryway, and put his head near Complainant's in an effort to join the conversation. The coworker told the supervisor that he was only clearing his throat. Complainant stated he responded, "You were not! You know what you were doing - you do it every god-damned day!" The supervisor and coworker stated that Complainant said, "that's bullshit" and that called the coworker "a god-damned liar," and moved his face closer to the coworker's face. The supervisor stated she was afraid Complainant would do something to the coworker so she grabbed his left arm. The supervisor then told both employees to return to their desks, which they did. Complainant stated that the coworker again made the noises prompting Complainant to make another complaint to the supervisor. The supervisor told Complainant to provide a written statement of the incident, which he did. The coworker also submitted a similar statement. As a result, an investigation was initiated by an Agency Security Specialist (African American, over 40), which included an interview of Complainant. The record contains a copy of a September 10, 2010 report from the investigator, which concludes that although no physical contact was made, Complainant's reaction was "inappropriate, hostile and threatening" in violation of the Agency's anti-violence policy. The investigation recommended, in light of a prior reprimand in January 2009 to Complainant, the he receive a five-day suspension. On September 27, 2010, the supervisor and Complainant's second-level supervisor (Caucasian, over 40) met with him to discuss the August 22 incident and inform him that the investigation concluded that he had violated the Agency's no violence in the workplace policy and there would likely be some form of disciplinary action taken against him. Later in the day on September 27, Complainant met with his third-level supervisor (Caucasian, over 40) to find out what sort of disciplinary action he faced. The third-level supervisor told him that no decision had been made yet. Complainant told the third-level supervisor that he believed his supervisor and second-level supervisor were very hostile towards him and that he felt it was all unfair and that he had been ambushed. To illustrate this point, Complainant gestured like he had a gun and said "pow, pow, pow . . . that's how I would expect an incident to be handled at the U.S. Postal Service." The third-level supervisor stated, "I took that to mean a reference to an employee going what is commonly termed as 'postal.'" The third level supervisor stated the combination of the handgun gesture and the reference to the Postal Service prompted him to share his concerns with his manager and Security. On September 30, 2010, Complainant was placed on a non-duty/non-pay status because of his conduct on September 27, 2010. Complainant was escorted out of the building by security. On November 17, 2010, the Agency officially terminated Complainant's employment for inappropriate conduct. The Notice indicated Complainant was terminated based several incidents of aggressive and abusive language in the workplace, as well as several allegations of rude and discourteous behavior on the telephone towards applicants for disaster relief. It was noted that Complainant had previously received up to an Official Reprimand for similar conduct with a coworker. In addition, the third level supervisor stated that Agency management also complained about Complainant and "his being disruptive in a variety of situations. Such as sending numerous emails on a daily basis and being upset if he didn't get a response. His complaining about coworkers noise and the eating habits of coworkers, foot traffic, seating assignments, and things of this nature." The MDNPSC Branch Chief, also Complainant's fourth level supervisor, stated that she was the deciding official to place Complainant in a non-duty/non-pay status "because of the comments and gesture he made to [third level supervisor]. The complainant made a gesture of firing a weapon and referred to 'going postal' when he met with [third level supervisor]." Complainant asserted that Agency representatives denied his request to gather his diabetes medication and other items from his desk once he was to be escorted out of the building. However, the MDNPSC Branch Chief stated that after Complainant was placed on notice that he would be placed in a non-duty/non-pay status, "he was offered the opportunity to return to his desk to collect his personal items or [third level supervisor] would gather his personal items and bring them to my office. [Third level supervisor] went to [Complainant's] workstation and gathered his personal items from his work station. I assume this would have included his medications." With respect to Complainant's allegation that on September 30, 2010 he was denied the opportunity to finish eating his lunch to manage his diabetic condition before an interrogation session took place with federal inspectors, the third level supervisor stated that on the day in question he was looking for Complainant to bring him into a meeting. However, Complainant was not at his desk and "his phone was coded in a lunch break code, which was an indicator to me he was at lunch...I waited for a while near his desk for his return. My assumption was he was returning from his lunch. When he arrived he didn't say anything about not having eaten, nor that he needed to eat because he was hypoglycemic. I recall his asking if the meeting would take long and should he put himself in another phone code and that I told him it would not be a long meeting. The [meeting] only lasted approximately ten minutes." Complainant also asserted that he was not permitted to perform higher-level duties in his field of credential work while his co-workers were entitled to perform higher-level work. Management witnesses stated they told Complainant that He also asserted that his telephone calls with disaster victims were periodically monitored, although he acknowledge that other employees also had their calls monitored. Despite his complaint that his supervisor was not responsive to his Complainant also admitted that management sent out a memorandum Based on these facts, the AJ concluded that even if Complainant established a prima facie case of race, religion, disability and age discrimination, the Agency articulated, legitimate, nondiscrimination reasons for its actions which Complainant failed to prove were a pretext for discrimination. The Agency fully implemented the AJ's decision in its final action. The instant appeal followed. ANALYSIS AND FINDINGS 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. After careful review, we find that the record was adequately developed during the investigation, and Complainant has failed to persuasively identify issues of material fact that can only be resolved through a hearing. First, we note that Complainant, on appeal, argued that the AJ did not acknowledge his opposition to the Agency's Motion for a Summary Judgment.1 However, we find that the AJ references Complainant's opposition in her decision that determined that the instant matter was suitable for summary judgment. The most significant issue Complainant points to as a material fact in dispute is the event of September 27 involving the gun gesture. Complainant asserts that he did not make a "trigger" gesture and states that he only made a gun gesture to demonstrate the "shoot from the hip" style of the investigation against him over the August 22 incident. However, we find that no hearing is needed as Complainant has essentially admitted to the gesture and words that resulted in his termination, although not to the intent of the action. But Complainant's intent is not material to proving discrimination. Rather, management's intent is the issue here, and management witnesses have provided clear and unrebutted testimony as to why they were fearful of the gun gesture and the reference to the postal service. 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 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case, the Agency adequately explains its decision to investigate the August 22 incident involving Complainant and the coworker that was witnessed by the supervisor. The investigator concluded that while no physical contact occurred, Complainant displayed anger and hostility towards the coworker, behavior he had previously been warned against in a letter of reprimand. The actual decision to terminate him occurred after the September 27 meeting with the third-level supervisor to discuss Complainant's anger with his supervisors about the investigation and possible disciplinary action, and the third-level supervisor was disturbed by Complainant gestured shooting a gun with his finger and implied he might go "postal." The termination notice also referenced earlier incidents of anger and rude behavior. The burden is on Complainant to prove, by a preponderance of the evidence, that the Agency's explanation for its actions were a pretext for unlawful discrimination. Complainant argues that the investigation of the August 22 incident subjected him to race discrimination because the investigator was a racist, who did not like white people. In support of this claim, Complainant, at his deposition, stated that the investigator was an ex-cop with the Washington, D.C. police department, which he asserted was known for its racism. He also asserted that the investigator walks with a swagger, tried to get him discipline before and badgered him at a meeting. Complainant asserts that because the investigation was tainted by race discrimination, so too was the ultimate decision to terminate him. We find, however, that Complainant has failed to prove race discrimination. He admits that the investigator never made any racist statements to him and that he has no evidence beyond what was already described. Complainant alleges religious discrimination because he believes he was fired for using the phrase "god-damned." He argues that as an atheist, he does not believe in God and so cannot be prohibited from using "profane" language. However, the record does not support the claim that he was terminated for the use of profane language. Rather, it was the sum total of the events of August 22 and September 27, as well as his past disciplinary record and recent events involving alleged rudeness to disaster claimants that resulted in the decision to terminate him. Complainant has similarly not established age discrimination. Even assuming his supervisor called him a "grumpy old man" on one or two occasions, we conclude that that alone is insufficient to find that he was subjected to a hostile work environment, or to find that supervisory decisions about his workload, assignments and/or training opportunities were made because of his age. Finally, Complainant's disability claim seems to center on his claim that he was not allowed to finish his lunch before he was called into a meeting and informed that he was being placed off work and escorted from the premises. Agency witnesses stated they believed he had already taken lunch based on his time card, and further asserted that the meeting only took ten minutes. Even if Complainant's allegations in this regard are true, we do not find that this event rises to the level of a violation of Agency's duty to provide Complainant with reasonable accommodation. In sum, we find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly applied those facts in reaching her conclusions of law. We conclude that Complainant did not prove that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, religion, disability and age. Therefore, there is no basis to disturb the AJ's decision. The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED. 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 13, 2014 __________________ Date 1 Complainant points to the fact that the AJ, in her decision, stated that Complainant responded to the Agency's September 28, 2012 motion for summary judgment on March 31, 2013, when in fact Complainant's response was submitted on October 15, 2012. We have no reason to believe this was anything but a typographical error. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132641 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 8 0120132641 9 0120132641