U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan D. Vanlandingham, a/k/a Chuck B.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120160249 Hearing No. 430-2014-00252X Agency No. 13-40085-02128 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's September 15, 2015 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. ISSUE PRESENTED Whether the EEOC Administrative Judge correctly determined that there were no genuine issues of material fact requiring a hearing in this case, and that Complainant failed to establish discrimination and/or unlawful retaliation when he was issue a notice of suspension in May 2013. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electrician at the Agency's Naval Facilities Engineering Command facility in Norfolk, Virginia. On April 24, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), color (white), age (51), and/0r reprisal for prior protected EEO activity when, on May 22, 2013, he received a notice of suspension effective June 2, 2013. The Agency accepted the complaint and conducted an investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following a discovery period, the Agency filed a Motion for Summary Judgment. Complainant, through counsel, filed a response to the Agency's motion. After a review of the record, the AJ found that the record was sufficient and concluded that there were no genuine issues of material fact that required a hearing. In reaching this determination, the AJ found that the following relevant facts were established in the record developed during the investigation. On November 13, 2012, Complainant's first level supervisor (Caucasian male, several years older than Complainant) was notified that a female sailor ("S-1") (Hispanic female, age not identified) had filed a sexual harassment charge with Navy command against Complainant. Complainant's supervisor informed him of the allegations and instructed him to stay out of the building where S-1 worked pending an investigation. The Agency's Human Resources' department appointed an investigator to conduct a fact-finding inquiry into the allegations. The investigation was conducted in December 2013. The investigator obtained statements from S-1, Complainant and three witnesses. The record indicates that the electricians at the facility were generally referred to by other employees as "contractors." There were two "contractors" working in the building on the date in question: Complainant and his coworker ("C-1") (white male). Complainant is about 20 years older and significantly taller than C-1. S-1's statement indicated that on the date in question, she encountered Complainant in the building where she worked. She said that he looked "her up and down in a provocative way." She then reported he said, "it's cold out here" and started to rub his nipples. According to S-1, Complainant stated that his "nipples were hard" while "looking at me (S-1) dirty." S-1 stated that after this encounter, throughout the day, Complainant kept trying to talk to her and every time she saw him that day, he was looking at her. Further, S-1 stated that when she went through the hallway in the building, Complainant tried to trip her and grab her. S-1 told Complainant that she "did not play those games" and kept walking. Later that same day, S-1 said she entered a base snack shop. She stated Complainant was in the shop. She said that Complainant said things to her such as, "ooh, I didn't see you there behind the counter." She said Complainant kept staring and smiling at her. S-1 said that she responded by rolling her eyes at Complainant. She said that that Complainant then appeared angry and she left the snack shop. A second witness ("W-2") entered the snack shop. S-1 states that W-2 overheard Complainant tell his co-worker, "how dare that big-eyed bitch roll her eyes at me." Complainant denied S-1's allegations, and said he was not in the snack bar on the date in question. One of the witnesses interviewed ("W-1") (African American male, no age in record) said he did not see the way Complainant was looking at S-1 during the alleged incident, said the taller of the two contractors say, "my nipples are hard because it is so cold." He opined, however, that he believed S-1 was "blowing things out of proportion." Another witness ("W-2") (African American male, no age in record) stated that he heard a contractor, who he described as a "tall, slim white guy about six-four/six five, white hair, white beard, and glasses," say, "that big-eyed bitch had the nerve to roll her eyes at me." C-1, Complainant's coworker, was the third potential witness contacted during the investigation. He denied seeing anything, but admitted he was in and out of the building getting tools for the job, and not with Complainant the entire time they were in the building. On January 24, 2013, while the investigation was pending, Complainant contacted the Agency's EEO office about the matter. The record shows that his management was notified of the contact in late February 2013. Complainant, however, withdrew this EEO complaint in April 2013. Based on the statements of S-1, the two witnesses, and Complainant's statements, a fact-finding report was issued determining that the sexual harassment allegations against Complainant were substantiated. On April 16, 2013, the Agency issued a Notice of Proposed Suspension to Complainant. The charges were lack of candor and engaging in conduct unbecoming. Complainant, having received the Notice of Proposed Suspension, filed a new EEO complaint on May 28, 2013, the complaint at issue in this appeal. He based his retaliation claim on his earlier EEO contact concerning the same matter. On May 22, 2013, the Supervisory Architect/Deputy Public Works Officer (Caucasian male, older than Complainant) issued a notice of decision, upholding the 14-day suspension proposed in the April notice. He stated he based his decision on the results of the fact-finding investigation. He also indicated he considered a prior suspension in Complainant's personnel file. Based on these facts, the AJ issued a decision by summary judgment in favor of the Agency, concluding Complainant failed to prove that the articulated reasons for the proposed suspension were a pretext for discrimination. The Agency issued its final order, adopting the AJ's decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, contends that the AJ erred in not holding a hearing. He submits that there are material facts at issue - most significantly, serious credibility concerns about the underlying sexual harassment allegations that can only be resolved at a hearing. Among other things, he contends that he may not have been the individual making the statements to S-1. Complainant requests that the Agency's final order be vacated and that this matter be remanded to an Administrative Judge for a hearing. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. As noted, on appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Complainant had the opportunity to conduct discovery, including taking depositions. He had full opportunity to prepare evidence for presentation to the AJ. Complainant's main arguments center on his dispute about whether or not S-1 was telling the truth or whether he was misidentified as the culprit. However, he has not adequately established that there is a genuine dispute about management's motivation for proposing and finalizing the suspension. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary judgment. 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); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, that is, that a prohibited consideration was a factor in the adverse employment action. 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. 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here, the responsible management officials articulated legitimate, non-discriminatory reasons for the suspension. A complaint of sexual harassment was filed against Complainant, a fact-finding inquiry ensued, the investigation ended with a finding that the sexual harassment allegations were substantiated, and the suspension was proposed as a result. The AJ correctly determined that Complainant failed to prove, by a preponderance of the evidence, that the Agency's legitimate, nondiscriminatory reasons were a pretext for discrimination. Complainant's "evidence" appears to consist of conclusions, denials and unsupported contentions that the harasser, if any, was someone other than Complainant. There is a complete absence of evidence showing that Agency management discriminated against Complainant based on race, color, age or retaliatory animus. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's Final Action. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 _3/13/18_________________ 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 0120160249 7 0120160249