U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joel M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140304 Hearing No. 480-2012-00094X Agency No. 200P06912011101939 DECISION On October 15, 2013, Complainant filed an appeal from the Agency's September 23, 2013, 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. ISSUES PRESENTED The issues presented are: (1) whether Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against him on the bases of race (Middle Eastern) and national origin (Lebanese),2 when: 1. On January 19, 2011, Complainant was detailed back to Sepulveda; and 2. On March 17, 2011, Complainant was denied overtime. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Medical Center in Los Angeles, California. The Agency operates three facilities in the Los Angeles area: West Los Angeles (WLA), Sepulveda and downtown Los Angeles. Generally, police officers rotate shifts and/or locations every three months and the Agency makes efforts to rotate all the police officers to all three locations. When a police officer is assigned to Sepulveda, the Agency generally keeps the officer there for two rotations, or six months. On September 22, 2010, Complainant submitted a request to the Patrol Captain (PC) asking to be assigned to a specific Lieutenant (L1). Complainant wrote that he, "would gladly rotate to Sepulveda if necessary." In October 2010, Complainant rotated to Sepulveda but remained under the supervision of his current Lieutenant (L2). On December 23, 2010, L2 informed Complainant that he would report to L1, effective January 19, 2011. On January 14, 2011, Complainant sustained a work-related injury and was assigned to light duty performing desk work. Generally, police officers who are on light duty have their police credentials temporarily suspended and are dispatched to the WLA location. On January 19, 2011, Complainant began reporting to L1, as scheduled. L1 instructed Complainant to report to WLA. However, approximately one hour after Complainant arrived, L1 instructed him to return to Sepulveda.3 On February 17, 2011, Complainant volunteered to work overtime for the Los Angeles Marathon, scheduled for March 20, 2011. On March 7, 2011, Complainant called out sick and on March 17, 2011, L1 informed Complainant that he was not approved to cover the marathon because he called out sick during the period leading up to the marathon. On April 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Middle Eastern) and national origin (Lebanese) when: 1. On January 19, 2011, he was detailed back to Sepulveda; and 2. On March 17, 2011, he was denied overtime. 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 Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's February 24, 2012, motion for a decision without a hearing and issued a decision without a hearing on September 13, 2013. In regards to issuing a decision without a hearing, the AJ determined that the record was adequately developed and that there were no material facts in dispute regarding Complainant's discrimination claims based on race and national origin. As such, he issued a decision based upon the record. The AJ found that Complainant had not established a prima facie case of discrimination based on race and national origin. The AJ noted that while Complainant named three comparators who were outside of his protected classes, and stationed at WLA during the time they were not in possession of their police credentials, their circumstances differed. The first comparator was a new hire and had not obtained enough training and experience to work at Sepulveda. The next comparator had his credential temporarily removed pending compliance with mandatory training. And the last comparator was awaiting the pending completion of his background investigation. The AJ also noted that all of the comparators had their police authority suspended for reasons other than physical injury. Additionally, the AJ found that Complainant did not provide any comparators in support of this claim that he was discriminated against when he was denied overtime. The AJ also found that Complainant did not dispute the Agency's practice of denying overtime to police officers who call out sick in the period leading up to an overtime event. Since Complainant did not provide any evidence that his race or national origin motivated the Agency's denial of his overtime request, the AJ held that he had not shown a prima facie case of discrimination for this claim. The AJ assumed, arguendo, that Complainant had established a prima facie case of discrimination based on race and national origin, but found that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency stated that Complainant conducted his light duty assignments at Sepulveda to gain experience and provide coverage at this location. Complainant's managers also noted that he was not needed at WLA. In regards to the claim of denied overtime, the Agency indicated that it has a policy to deny overtime to those who call out sick or take vacation shortly before an overtime event. Complainant alleged that L1 was in error when he determined that Complainant was not needed in WLA, in an effort to show that the Agency's proffered reasons were pretext for discrimination. However, the AJ noted that even in Complainant was correct, differences of opinion and/or mistakes in judgment are not evidence of intentional discrimination. As to the denial of overtime, the AJ found that Complainant has not provided any evidence to demonstrate that the Agency's proffered reasons were false, unworthy of credence, or pretext for discrimination based on race or national origin. The AJ concluded that Complainant had not shown by a preponderance of the evidence that his race and/or national origin motivated the Agency's decision to have him complete his rotation at the Sepulveda, despite his light duty status, and to deny his request for overtime. On September 23, 2013, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination based on race and national origin. Complainant then filed the instant appeal but did not provide any arguments in support of his appeal. The Agency responded to the appeal by requesting that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review 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 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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").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 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). In this case, we agree with the AJ that that there were no material facts in genuine dispute regarding Complainant's discrimination claims based on race and national origin. Accordingly, we find that a decision without a hearing was appropriate. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on race and national origin, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For Complainant's claim that he was discriminated against when he was detailed back to Sepulveda, L1 stated that Complainant was not needed at WLA and that he was to remain at Sepulveda to gain experience working at that location. In regards to the denial of overtime, PC stated that when making assignments for overtime events, someone who had recently called out sick was not considered because there is no guarantee that the person will show up. L1 stated that when he informed Complainant that he was not approved to work the Los Angeles Marathon, he stated that it was due to Complainant's recent sick leave. PC, L1 and L2 denied discriminating against Complainant based on race and national origin and Complainant has not provided evidence showing that the Agency's proffered legitimate, non-discriminatory reasons were pretext for discrimination. In support of his argument of pretext for discrimination, Complainant alleges that PC stated to L1 that she did not want him at WLA. L1 stated that PC did not make this statement to him. The record contains a statement from a witness (W1), claiming that he heard PC state that she did not want Complainant at WLA in front of L1. However, even if PC made that statement, W1 did not state that PC said that she did not want Complainant at WLA because of his race or national origin; therefore, we do not find this to be a material fact. While Complainant stated that he had documentation showing that PC lied under oath and falsified federal documents, which prove that she discriminated against him, he did not provide any documents. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find that Complainant did not establish that the Agency's decision to keep him at Sepulveda, instead of transferring him back to WLA, and denying his overtime were based on his race or national origin. 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 adopting the AJ's decision without a hearing finding no discrimination based on race and national origin. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 (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 __4/27/16________________ Date 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. 2 Complainant's basis of retaliation was not included in the Notice of Partial Acceptance and he did not reply to the Agency to request the inclusion of this basis. The AJ did not address this basis and, accordingly, the Commission will not address a retaliation claim in this decision. 3 Complainant rotated back to WLA on April 10, 2011. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140304 7 0120140304