David Ng,
Complainant,

v. 

Leon E. Panetta,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120120938

Hearing No. 480-2010-00675X

Agency No. AAFES-10.062

DECISION

On December 16, 2011, Complainant filed an appeal from the Agency's November 18, 2011, 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.  The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).  

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Region Food Program Specialist at the Agency's Camp Foster Okinawa Exchange in Okinawa, Japan.  The record indicated that Complainant was assigned to this position starting in January 2004 for a three-year assignment.  The assignment was renewed for an additional 24 months.  

On April 14, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Chinese American) and age (58) when:  

1. from January 2009 to April 2010, Complainant was subjected to a hostile work environment at the hands of his supervisor;  
2. Complainant's request to remain in his position as Camp Foster Food Court manager was denied; and 
3. effective April 3, 2010, Complainant was laterally transferred from Camp Foster to Fort Hood.

With regard to Complainant's harassment claim, the investigation showed that Complainant's supervisor (Supervisor) was first assigned to be the Food Court Manager in 2008.  She indicated that she observed Complainant yelling at employees.  The incidents were reported to the Okinawa General Manager (GM).  The GM had an internal investigation into the allegations regarding Complainant's treatment of his employees.  Based on the findings of the internal investigations, the GM issued Complainant counseling on his behavior and required Complainant to take an anger management course.  Complainant also noted that the Supervisor would correct his pronunciation of words and claimed that she told another employee that Complainant did not speak English well.

In November 2009, the Career Manager contacted Complainant informing him that his assignment was scheduled to expire in February 2010.  Complainant indicated that he preferred staying in Okinawa and would like to wait until a Regional Food Staff position became available.  He was told there was no vacant Regional Food Specialist position available.  On January 28, 2010, Complainant received orders informing him of a transfer to the Food Court Manager position at Fort Hood, Texas.  Complainant requested to remain in Japan, but the request was denied.  On April 3, 2010, Complainant was transferred to Fort Hood, Texas.

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.  The Agency moved for summary judgment on April 1, 2011.  Complainant responded to the motion on May 25, 2011.  Following a review of the motions and the record, the AJ issued her decision without a hearing on October 27, 2011.

The AJ found that there were no material facts in dispute.  As an initial matter, the AJ found that Complainant failed to raise the claim of harassment in a timely manner.  However, assuming that the matter was timely raised, the AJ found that the comments allegedly made by the Supervisor were not sufficiently severe or pervasive enough to create a hostile work environment.  Therefore, the AJ concluded that Complainant did not show that he was subjected to harassment.

As to the claims of disparate treatment, the AJ determined that Complainant did not establish a prima facie case of discrimination based on age and/or national origin.  The AJ noted that there were no vacant Regional Food Service positions for Complainant to remain in Japan.  Therefore, he was reassigned to a position with the same grade in Fort Hood, Texas.  Furthermore, the AJ found that the Agency provided legitimate, non-discriminatory reasons for its decision to transfer Complainant.  Finally, the AJ concluded that Complainant did not show that the Agency's reasons constituted discrimination.  

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.

Complainant appealed the Agency's decision to implement the AJ's findings and conclusions.  Complainant asserted on appeal that he had established a prima facie case of discrimination.  Further, Complainant asserted that the AJ erred in finding that he failed to show that the Agency's reasons were pretext for discrimination.  Complainant argued that the Agency's proffered reasons for moving Complainant out of Japan were self-serving and solely based on Complainant's assignment ending.  Further, the Supervisor was promoted to a Food Court Program Specialist position in June 2010.  Complainant could have remained in Japan until that time.  Further, Complainant asserted that he did state events which were sufficiently severe to create a hostile work environment.  As such, Complainant requests that the AJ's decision be reversed.  

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").

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.  

Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment.  The record is adequately developed and there are no disputes of material fact.  

Harassment

It is well-settled that harassment based on an individual's [basis] is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).  In order to establish a claim of  harassment under those bases, the complainant must show that: (1) s/he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) s/he was subjected to unwelcome conduct related to his/her membership in those classes and his/her prior EEO activity; (3) the harassment complained of was based on [bases] and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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).  The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).

We note that Complainant alleged he was subjected to harassment when he was the subject of an internal investigation.  We note that such a complaint is more properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.  Complainant alleged discrimination with respect to his dissatisfaction with the Agency's internal investigative process of his alleged inappropriate conduct in the workplace. As such, this allegation constitutes a collateral attack upon the internal investigative process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 059705% (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (September 22. 1994). The proper forum for Complainant to have raised her dissatisfaction with the processing of his investigation is within that process.  As such, the Commission cannot consider this evidence in support of his claim of harassment.

The only remaining events raised in support of his claim of harassment his assertions that the Supervisor corrected his pronunciation and a conversation that allegedly occurred between the Supervisor and a co-worker in which the Supervisor complained about Complainant's English skills.  We find that the AJ correctly determined that these two events of which only one occurred in Complainant's presence are not sufficiently severe or pervasive to establish a claim of harassment.  Accordingly, we find that the Agency's implementation of the AJ's decision was appropriate.  

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  For Complainant to prevail, he or she 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 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).  Once the Agency has met its burden, 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 Ctr. 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.  U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 

For purposes of analysis, the Commission finds that Complainant established his prima facie case of discrimination based on age and national origin.  As such, the Commission need not address Complainant's arguments regarding his prima facie case.  In claims (2) and (3), Complainant essentially asserted he was discriminated against when he was not permitted to stay in Japan and was transferred to Fort Hood, Texas.  Upon review of the record, we find that the Agency provided legitimate, nondiscrimination reasons for its action.  The record clearly indicated that Complainant had a 36 month assignment which had already been extended for 24 months.  Agency officials noted that they searched all applicable positions for a Food Court Manager and the only position found was the one in Fort Hood, Texas.  As such, Complainant was transferred to that location.  Upon review, we find that the Agency has articulated legitimate, non-discriminatory reasons for its actions.

We now turn to Complainant to show that the Agency's reasons were pretext.  Complainant indicated that four months after his transfer, the position he sought in Japan became vacant.  However, we find that this evidence alone is not sufficient to show that the Agency's reasons were pretext for discrimination.  Complainant also baldly asserted that the Agency had allowed others to remain in Japan.  Again, Complainant provided this argument without any support for his assertion.  We find the argument alone is insufficient to establish that the Agency's actions constituted discrimination based on Complainant's national origin and/or age.

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 implementation the AJ's decision finding no discrimination. 

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

June 12, 2012

__________________
Date

 
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013



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