0120120773
04-17-2015
Complainant v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Complainant
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120120773
Hearing No. 430-2011-00002X
Agency No. DLAR-09-1170
DECISION
On November 21, 2011, Complainant filed an appeal from the Agency's November 1, 2011, final decision concerning her 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's request for a hearing, and (2) whether the Agency properly found that that Complainant had not established her claim of discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Procurement Supervisor, GS-1102-12, at the Agency's Defense Supply Center Richmond (DSCR), Division Original Equipment Manufacturer One (DSCR-FA/OEM-1), British Aerospace/Moog Team Integrator Supply Team (BAE/MOOG IST), in Richmond, Virginia.
Complainant contacted an EEO Counselor on August 4, 2009. According to the EEO Office Contact Report, Complainant alleged that the Agency discriminated against her on the basis of race when it did not select her for a vacant supervisory position. The Report stated that Complainant "desires to be relocated to another department." Complainant contacted the EEO Counselor again on August 24, 2009. In an August 26, 2009, e-mail to an EEO Specialist, Complainant alleged that the Agency discriminated against her on the basis of race by subjecting her to a hostile work environment. Subsequently, in an October 16, 2009, e-mail to the EEO Specialist, Complainant asserted that management was trying to place her in another area. The EEO Specialist replied on October 19, 2009, and stated, "[W]hen we initially spoke and you requested mediation you asked to be moved." The EEO Specialist also stated that management offered to assist Complainant with the move; that Complainant agreed to the assistance; and that Complainant "recently" informed the EEO Specialist that she was not comfortable with management moving her and preferred to find a position herself.
On December 17, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (42), and reprisal for prior protected EEO activity. The Agency defined Complainant's allegations as follows:
1. whether Complainant was subjected to harassment on the bases of her race, sex, and age when:
a. on July 14, 2009, she was notified by her supervisor that she was not selected for the position of Integrated Supplier Team Lead, GS-13, because they wanted to hire a younger male for the job;
b. on July 20, 2009, Complainant requested an explanation as to why she was not selected for the position and was not provided a credible answer; and
c. between August 4 and August 10, 2009, her employees were instructed to make insulting statements to her and interfere with her work performance in order to give the appearance that she was not performing her duties; and
2. whether Complainant was discriminated against because of her race, sex, and age and in reprisal for protected activity when she was called into her supervisor's office, after contacting the EEO Office on August 4 and 24, 2009, to discuss her issues and agree to leave her supervisory position.1
Factual Background
On June 12, 2009, the Agency announced a vacancy for a Supervisory Integrated Acquisition Supply Team Specialist, YC-1101-02. According to the Vacancy Announcement, the position required knowledge of enterprise acquisition and logistics management functions, the ability to use problem-solving methods in conjunction with customer and supplier knowledge, and experience in "leading, coordinating, and/or conducting studies to identify and recommend ways to improve IST work operations and enhance customer satisfaction." Complainant applied and was found to be qualified for the position.
The OEM-1 Division Chief2 appointed the OEM-1 Eaton Supplier Team Lead/Supervisor (P1) to lead a three-member panel to interview the candidates for the position. P1, who had a Procurement background, chose a supervisor who worked in Supply and a supervisor who worked in Technical Quality to be the other members of the interview panel. The panelists interviewed ten candidates, including Complainant. They asked the candidates the same eight questions and assigned numerical scores to the candidates' answers. Complainant, who received a score of 59 out of a possible 120, was the ninth-ranked candidate. By memorandum dated July 9, 2009, P1 submitted the names of the top three candidates: a 31-year-old white male who received a score of 97, a white female who was in her thirties and received a score of 96, and a 65-year-old white female who received a score of 91.
The OEM-1 Deputy Division Chief, who was Complainant's second-level supervisor and the selecting official (SO), chose the 31-year-old white male for the position. The Division Chief approved of the selection. The selectee became Complainant's first-level supervisor.
In a July 9, 2009, Data and Selection Approval document, the Division Chief and SO stated that the selectee was a supervisory acquisition specialist and had extensive procurement experience. They also stated that he "was best able to articulate and demonstrate his experience and knowledge of contracting, leadership, and problem solving. During the interview, he articulated his ability to be proactive, to be a strong advocate for change, and . . . to allow a smooth transition for his employees during the implementation of a new system."
In a July 9, 2009, Applicant Review Summary, SO defined the selection criteria as leadership skills, contracting-officer experience, and problem solving. She stated that the selectee was "well prepared for his interview . . . was confident, and asked good questions." She also stated that the selectee "demonstrated excellent leadership skills," that his experience as a contracting officer was "excellent" and "very apparent during the interview," and that he "had an abundance of knowledge in contracting." In addition, SO noted that the selectee "provide[d] complete answers to all but one problem-solving question."
On Complainant's Applicant Review Summary, SO stated that Complainant was prepared for the interview and "appeared calm but nervous." She described Complainant's contracting-officer experience as "adequate" and stated that Complainant "gave adequate answers to most of the problem-solving questions asked." SO further stated, however, that Complainant had not demonstrated good leadership skills.
On July 14, 2009, the Division Chief and SO met with Complainant to inform her that she had not been chosen for the position. The two officials also met separately with two other applicants from the Division.
In her affidavit in the Report of Investigation (ROI), Complainant alleged that, during the July 14, 2009, meeting, the Division Chief "told [Complainant] that the reason that [Complainant] had not been selected for the position was because they wanted a younger white male for the position." She asserted that the Division Chief and SO "had smirks on their faces." She also asserted that, in April 2009, an employee (E1) told her that SO stated that Complainant would not get a promotion. In addition, Complainant stated that she expressed an interest in the position during a June 9, 2009, meeting with SO. According to Complainant, SO "looked at [Complainant] and kind of laughed and said, 'You really think you are going to get that position?' and smirked." Complainant stated that she "believe[d] that the facial expression of [SO] reflected her racial bias against [Complainant] as an African American female." Complainant asserted that, since December 2004, Caucasian individuals have been selected for all of the IST Team Lead positions.
Complainant argued that she was more qualified for the position than was the selectee. She asserted that the selectee does not hold regular staff meetings, does not respond to customers and employees, and has not resolved the majority of the issues that Complainant has presented to him. Complainant stated that she timely responds to e-mails, is a problem solver, responds to buyer and contractor questions when she knows the answers and "elevates" the questions when she does not know the answers, keeps her subordinates informed, works on improving her team, and is a team player.
Complainant alleged that her workplace started to become hostile in late May or early June 2009, when the position was going to become available. She asserted that SO started to make jokes about the questions that Complainant asked during staff meetings. Complainant also asserted that, when SO mentioned that a GS-13 position would become available, SO "said 'and we know SOMEONE [sic] is going to apply for it' and smirked at" Complainant. Complainant, who alleged that SO behaved in a "mean-spirited" manner toward her, believed that SO's behavior was based on Complainant's race and age "because [SO] treated [Complainant's] peers more respectfully, even when she was joking with them. In contrast, [SO's] behavior toward [Complainant] seemed mean-spirited and [SO] appeared to be making an effort to humiliate" Complainant.
Complainant stated that she served as the Acting IST Lead from May 2009 until late August 2009 and that the Deputy Chief, SO, and contractors gave her positive feedback about her performance. She asserted that she spoke with the Deputy Chief and SO about problems that she was having with an African-American subordinate (E2) and a Caucasian subordinate (E3), that SO agreed that Complainant could counsel E2, and that SO told Complainant not to worry about E3 because E3 was the highest producer and a good employee.
In addition, Complainant asserted that someone had rifled through her desk eight to ten times between August 4 and 10, 2009, and that she found her work folders on the copier and in other locations. She also asserted that E1 told Complainant "that other employees were messing with [Complainant's] desk." Complainant alleged that SO came by her desk, "smirked at [Complainant] and said 'oh has someone been messing with your desk?'" and "laughed and smirked again" when Complainant replied affirmatively. Further, Complainant alleged that SO directed Complainant's subordinates to make insulting remarks and to interfere with Complainant's work performance. Complainant asserted that, on August 4, 2009, E2 told Complainant that E3 had pressured E2 to harass Complainant, that E3 was acting on SO's direction, that E3 had pressured five other employees (E4, E5, E6, E7, and E8) in the division to complain and make false statements about Complainant, that E2 had tampered with Complainant's desk, and that SO had lodged a complaint against Complainant and placed an investigator in a cubicle near Complainant's desk. Complainant asserted that she tried to tell SO what E2 had related but SO told her not to worry about it. She stated that she notified "management" that she was having problems with E2 and E3 but received no assistance.
Complainant also stated that she requested several different training classes but her requests were denied. She asserted that SO told her that she had requested too much training and that she should specify the requested classes in her Individual Development Plan (IDP).
Asserting that the Division Chief and SO began to treat her differently "by the end of the day" on August 4, 2009, Complainant argued that they learned of her protected EEO activity on that date. She claimed that, after her EEO activity on August 4 and 29, 2009, the Division Chief and SO "continuously requested that [Complainant] find another job." Complainant alleged that the Division Chief and SO told her "that they wanted [her] to leave the office because she had issues with who[m] they had hired," that they would find her a non-supervisory position outside of OEM-1 if she did not find one on her own, and that they "continuously" asked her to find another job. According to Complainant, their "efforts intensified in the September-October 2009 timeframe." Complainant stated that she looked for another position because she believed that they were trying to force her out of the division. She argued that there was no reason to remove her from her supervisory position and that the managers' actions were retaliatory. Complainant also argued that the EEO Specialist tried to help management by looking for another position for Complainant.
In her affidavit, P1 stated that the panel interviewed ten candidates and that the panelists discussed the interviews to ensure that they had not missed anything and that their notes were consistent. She asserted that the panelists agreed that the three candidates whose names were submitted to SO were the top candidates. She also asserted that the recommended candidates provided good answers to questions and that "some of their answers exceeded our expectations and actually made us think." According to P1, Complainant "appeared to be confident, but she did give some incomplete and partially incorrect answers." P1 stated that the panel based its recommendation on the candidates' applications and interviews, that Complainant "did not portray her knowledge and experience in the answers that she gave in the interview," and that Complainant "was not the best person for the job." P1 also stated that she attended the weekly staff meetings and that she "never witnessed [SO] making fun of the Complainant's questions or comments."
SO stated in her affidavit that she and the Division Chief decided that the selection panel should consider the candidates' "leadership, problem solving, and contracting experience." SO stated that P1 discussed the panel's recommendations with her and the Division Chief, that P1 stated that the selectee "stood out from the other applicants and had the best interview" of the three candidates on the recommended list, and that SO and the Division Chief followed the panel's recommendation. She also stated that she did not select Complainant for the position because Complainant was not on the list of recommended candidates.
SO, who did not recall whether Complainant expressed an interest in the position during a meeting, asserted that she "would not have made any statement to the effect of 'you really think you are going to get that position?'" She stated that she and the Division Chief met with the three candidates from the division who were not selected for the position, told the candidates that they should elaborate on their answers to interview questions, recommended that they take classes to broaden their experiences, offered to hold mock panel interviews, and suggested that the candidates seek feedback from the members of the interview panel. SO further stated that neither she nor the Division Chief "told the Complainant that [they] had not selected her because [they] wanted a younger white male for the position." According to SO, they "made no comment regarding the selectee other than 'it was not you' and [they] said basically the same thing to each non-selectee."
SO denied that she singled out Complainant in staff meetings or purposefully humiliated Complainant. She acknowledged that Complainant told her that someone had tampered with Complainant's desk and told her that E2 had "confessed to doing 'terrible things' to" Complainant. SO asserted, however, that Complainant was "venting" rather than asking for help. SO stated that Complainant "regularly" complained to SO "that her employees were causing a lot of 'confusion'" and that the individual who Complainant said created the majority of the problems was removed from Complainant's team. She did not recall having any specific conversations concerning E3 but did recall "multiple conversations about generalized drama on Complainant's team." SO asserted that she told Complainant not to worry about the "confusion" as long as people were safe and doing what they should do and not interfering with work. She denied telling E2, E3, or anyone else to insult or harass Complainant or to interfere with Complainant's work, and she denied telling anyone that Complainant would never be promoted.
With respect to Complainant's training requests, SO stated that Complainant submitted several requests to take computer classes. After the third request, SO asked Complainant to contact the training coordinator about enrolling in a program that allowed employees to take an unlimited number of courses during a twelve-month period. SO stated that she approved six of Complainant's twelve requests for training between August or September 2009 and December 2009 and told Complainant that six classes were sufficient for the "short time period." She asked Complainant to include the remaining classes on her IDP for the next calendar year. Noting that Complainant was a first-line supervisor and that managers "are pivotal for keeping the work moving," SO argued that her response was reasonable.
SO stated that she became aware of Complainant's EEO complaint in late August or early September 2009. She denied trying to coerce Complainant to leave. SO asserted that, shortly after Complainant learned of her non-selection, Complainant told the Division Chief that she wanted a lateral transfer out of OEM. SO also asserted that she and the Division Chief told Complainant that they wanted her to stay but would not prevent her from leaving. She stated that the Division Chief told Complainant about a non-supervisory GS-12 position, but SO did not know if Complainant was interested in the position. SO also stated that she did not know that Complainant had changed her mind about leaving until a mediation, when Complainant expressed a desire to remain in the division.
In her affidavit, the Division Chief stated that she approved the selection of the selectee "based upon the panel's input" and that she "relied solely upon the panel's recommendation." She and SO met with P1 and, according to the Division Chief, the selectee "was clearly the top candidate and had the strongest interview and resume." The Division Chief stated that she and SO met with Complainant and conveyed P1's "comment that Complainant had not elaborated on her answers to the panel members' questions during the interview." The Division Chief denied that she told Complainant that they wanted to hire a younger white male.
In addition, the Division Chief stated that she had never seen SO single out or humiliate Complainant. She believed that SO mentioned to her "that Complainant was having some issues with her desk," but she did not know the specific issues.
The Division Chief denied trying to force Complainant out of the division or telling Complainant that she wanted Complainant to leave. She stated that, on July 20, 2009, she met with Complainant at Complainant's request and that Complainant expressed an interest in a lateral transfer. When the Division Chief asked why Complainant wanted to move, Complainant "responded that she thought management was against her" but did not elaborate. The Division Chief subsequently learned of a GS-12 vacancy in another division, told Complainant about it, and said that she would try to obtain more information. At the time, the Division Chief was not aware that the position was not a supervisory position. She stated that she did not know that Complainant had changed her mind about leaving and wanted to stay in the division until the matter arose during mediation. In addition, the Division Chief stated that she learned of Complainant's EEO complaint in late August or early September 2009.
E1 stated in her affidavit that Complainant said that she believed that someone was tampering with the items on her desk, but E1 never saw anyone do that. E1 also stated that she did not hear SO say that Complainant would not get a promotion. When Complainant asked E1 to meet with her outside of work to discuss Complainant's EEO complaint, E1 replied that she did not have time to do so. E1 subsequently accepted $20.00 from Complainant to meet with her.
In her affidavit, E2 stated that Complainant issued her a June 22, 2009, Letter of Instruction indicating that E2's performance "was not up to par." E2 also stated that she went to Complainant's desk on August 4, 2009, because she believed that Complainant's assessment had been unfair and that Complainant was setting her up to fail. When E2 apologized to Complainant for believing that Complainant was out to get her, Complainant told her that E3 was trying to get E2 fired. E2 denied telling Complainant that she had been asked to disturb Complainant's desk, that she had tampered with the desk, that E3 had pressured her to harass Complainant, or that E3 had coerced other employees to make false or insulting statements about Complainant.
E3 stated in her affidavit that neither the Division Chief nor SO had asked her harass or insult Complainant. She denied that she had tampered with Complainant's desk or had coerced E2 or any other employees to harass Complainant or to make false or insulting statements about Complainant.
E4 stated in an affidavit that she knew nothing about the allegation that someone had tampered with Complainant's desk and that E2, E3, and SO had not coerced her into saying anything about Complainant or interfering with Complainant's work performance. E5, who worked in a separate area, similarly stated that E2, E3, and SO had not coerced her into say anything to or about Complainant. The record does not contain affidavits from E6, E7, or E8.
Hearing Request
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and notice of her right to request a hearing before an EEEOC Administrative Judge. Complainant timely requested a hearing.
During the prehearing discovery phase, the Agency sent Complainant a December 2, 2010, Request for Admissions. The Request contained 18 proposed admissions, including the following:
Admission #14:
[The Division Chief] specifically said to you that she did not select you because she wanted to hire "a younger white male."
Answer:
Admission #15:
[SO] specifically said to you that she did not select you because she wanted to hire "a younger white male."
Answer:
In her December 30, 2010, response, Complainant responded, "Admitted" to requested Admissions 14 and 15.
Complainant filed a Motion for Summary Judgment or, Alternatively, Summary Adjudication of Liability Issues on March 8, 2011. The Agency filed a Motion in Response to Complainant's Motion on March 23, 2011.
In a June 22, 2011, Scheduling Notice and Order, the AJ scheduled a prehearing conference for August 1, 2011, and a hearing for September 13, 2011. The AJ ordered the parties to submit their Prehearing Reports no later than July 29, 2011. The Order stated,
No extension of the date for the hearing or submission of the Prehearing Report will be granted, absent a prompt request in writing with good cause shown. Failure to submit a proper Prehearing Report, to appear for the hearing or otherwise to comply with the orders of the Administrative Judge may result in sanctions, up to and including dismissal or default judgment, in accordance with EEOC Regulations and Commission case law.
In a July 7, 2011, Notice of Clarification, the AJ noted that Complainant had filed a Notice of Objection to the AJ's failure to rule on Complainant's Motion for Summary Judgment and Complainant's Motion to Strike the Agency's "improper rebuttal letter." The AJ stated that Complainant's Notice was premature, that Complainant's Motion was under consideration, that cases are scheduled for conferences to reserve dates, and that she had not received any "improper rebuttal letter" from the Agency. The AJ further stated, "Failure to comply with any of my orders or failure to attend any scheduled event may lead to sanctions including the possible dismissal of the captioned complaint(s)."
The Agency's Prehearing Report arrived at the EEOC's Charlotte District Office on July 29, 2011. Complainant, through her attorney, faxed her Prehearing Report to the AJ in the EEOC's Raleigh Area Office, where the AJ was located, after midnight on July 30, 2011.
By Order dated August 1, 2011, the AJ ordered Complainant to show cause for her failure to provide the Prehearing Report as ordered. Complainant, through her attorney, filed a Response to the Order to Show Cause on August 12, 2011. Complainant argued that she inadvertently filed the Prehearing Report less than one day late because she expected a ruling on her Motion for Summary Judgment and that her submission of the Report less than one day late did not delay the proceedings or cause prejudice to the Agency. Complainant also argued that the AJ permitted the Agency to file its Prehearing Report late, when it faxed 10 pages of the Report to the AJ during the August 1, 2011, prehearing conference.
By Order dated August 15, 2011, the AJ dismissed Complaint's hearing request and remanded the complaint to the Agency for further processing. She stated that pending motions do not affect case processing, that the parties were advised of the date of the prehearing conference and the requirement to submit a prehearing report, and that the parties also were advised that failure to abide by Orders could result in sanctions. The AJ noted that, during the prehearing conference, Complainant's attorney stated that he "faxed the Prehearing Report 'a few minutes before midnight' on July 29, 2011," and that there might have been a delay in the transmission of the fax. The AJ also noted that a fax-transmission receipt could have established when the fax was sent and that, in response to the Show Cause Order, Complainant's attorney argued that the late submission was inadvertent. Further, noting that "EEOC regulations, procedures, and processes are in place to insure a fair and manageable hearing process," the AJ rejected Complainant's contention that the delay in the submission of her Prehearing Report was inconsequential.
Finally, the AJ stated that the Agency's Prehearing Report was received in the EEOC's Charlotte District Office on July 29, 2011. The Raleigh Area Office reports to the Charlotte District Office, and the EEOC had possession of the document on its due date. Accordingly, the AJ deemed the Agency's Prehearing Report timely received. The AJ dismissed the hearing request and remanded Complainant's complaint to the Agency for further processing.
Final Agency Decision
In its final decision, the Agency found that Complainant did not prove that the Agency discriminated against her. The Agency concluded that Complainant established a prima facie case of race, sex, and age discrimination with respect to her non-selection for the Supervisory Integrated Acquisition Supply Team Specialist position. With respect to her hostile-work-environment claim, the Agency concluded that Complainant established a prima facie case of discrimination based on age and reprisal but did not establish a prima facie case of discrimination based on race or sex.
The Agency also found that it had articulated legitimate, nondiscriminatory reasons for its actions and that Complainant had not shown that the articulated reasons were pretextual. In addition, the Agency concluded that there was no evidence, other than Complainant's assertions, that the Agency subjected her to a discriminatorily hostile environment.
CONTENTIONS ON APPEAL3
On appeal, Complainant, through her attorney, asserts that she "filed her Prehearing Report on Friday evening, July 29, 2011 by faxing it, but the faxed transmission was completed with an effective filing time of Saturday morning, July 30, 2011, at 12:21 a.m." According to Complainant, her "attempts to fax the Prehearing Report to the AJ's office before 12:00 midnight on July 29, 2011 were unsuccessful because of communication errors between the respective fax machines." Complainant states that the successful fax transmission began at 12:04 a.m. on July 30, 2011. She submits a fax Transmission Verification Report that states a "Time" of "07/30/2011 00:21," a "Date, Time" of "07/30 00:04," and a "Duration" of "00:16:18." In addition, Complainant states that the AJ did not receive the Agency's Prehearing Report in her Raleigh office until the Agency faxed a portion of it to the AJ during the prehearing conference.
Complainant contends that her conduct was not contumacious and did not cause harm or prejudice to the AJ or the Agency. Citing Hale v. U.S. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000) (dismissal of complaint for failure to file Designation of Representative form unduly harsh where complainant telephonically notified hearings office that she was searching for an attorney, there was no evidence of undue prejudice to the hearings process or Agency, and complainant's actions demonstrated neglect rather than contumacious conduct), and Balusu v. U.S. Postal Service, EEOC Appeal No. 01986857 (March 30, 2001) (complaint remanded for a hearing where complainant asserted that one AJ told her that she did not need to submit a witness list because she was her only witness, another AJ dismissed hearing request for failure to produce witness list and remanded complaint to Agency for a final action if adequate information was available, and Agency dismissed complaint for failure to prosecute; complainant's conduct was based on a misunderstanding and was not contumacious), Complainant argues that the AJ abused her discretion when she dismissed Complainant's hearing request.
Complainant also argues that the AJ erroneously failed to grant her Motion for Summary Judgment. She asserts that the Agency, through its request for admissions, admitted that it discriminated against Complainant on the bases of race, sex, and age. She asks the Commission to order a hearing on make-whole relief for Complainant and to direct the AJ to recuse herself from further proceedings in this case.
In response, the Agency asserts that the AJ orally denied Complainant's Motion for Summary Judgment during the prehearing conference. The Agency argues that its Request for Admissions was not an admission of liability and that, if it wished to make admissions, it would have done so through signed stipulations. The Agency also argues that Complainant did not establish good cause for filing a late Prehearing Report and that the AJ's dismissal of Complainant's hearing request was not an abuse of discretion.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Dismissal of Hearing Request
The Commission's regulations afford broad authority to Administrative Judges for the conduct of hearings, including the authority to sanction a party for failure without good cause shown to comply fully with an order. See 29 C.F.R. � 1614.109; EEO MD-110, Chap. 7, � III(D); Complainant v. Dep't of Transp., EEOC Appeal No. 0120123005 (June 13, 2014) (citing Brannon-Winters v. Dep't of the Navy, EEOC Appeal No. 01A51549 (Mar. 28, 2006)). Where a party fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate. Id. Before sanctions are imposed, the Commission requires that the AJ notify the parties of what sanctions or other actions may be imposed for failure to comply with the AJ's order. EEO-MD-110, Chap. 7, � III(B).
Upon review, we find that it was not an abuse of discretion to dismiss Complainant's hearing request. The June 22, 2011, Scheduling Notice and Order ordered the parties to submit their Prehearing Reports no later than July 29, 2011. That document, as well as the July 7, 2011, Notice of Clarification, notified Complainant that failure to comply with the AJ's instructions could result in sanctions. Further, the AJ issued a Notice to Show Cause to afford Complainant an opportunity to explain why sanctions should not be imposed for her failure to submit the Prehearing Report as ordered.
Complainant has not shown that the AJ abused her discretion. Complainant has offered no evidence to support her assertions that she faxed her Prehearing Report on July 29, 2011, and that her fax attempts were unsuccessful because of "communication errors." Although Complainant has submitted a Transmission Verification Report showing a successful July 30, 2011, fax transmission, she has not submitted a report showing a failed attempt to fax a document on July 29, 2011. Further, we find that this case, where the AJ remanded the complaint to the Agency and the Agency issued a decision on the merits of Complainant's claims, is distinguishable from Hale and Balusu, where the complaints were dismissed.
Because the AJ acted within her discretion when she dismissed Complaint's hearing request and remanded the complaint to the Agency for further processing, she did not need to rule on Complainant's Motion for Summary Judgment. Accordingly, the AJ did not erroneously fail to grant Complainant's Motion for Summary Judgment.
Non-Selection
Complainant has argued that the Agency's Request for Admissions constituted an admission by the Agency that it discriminated against Complainant on the bases of race, sex, and age. Complainant's argument has no merit. As the Agency noted, a Request for Admissions does not constitute a stipulation.
Complainant has alleged that the Division Chief told her that she was not selected for the Supervisory Integrated Acquisition Supply Team Specialist position because the Agency wanted a younger white male for the position. The Division Chief denied making that statement, and SO stated that neither she nor the Division Chief made such a comment. We cannot conclude, based on the evidence before us does, that the Division Chief made the alleged statement.
In the absence of direct evidence, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
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 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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the Agency has articulated legitimate, non discriminatory reasons for its actions. P1 stated that the interview panel recommended the top three candidates for the Supervisory Integrated Acquisition Supply Team Specialist position. According to P1, Complainant gave "some incomplete and partially incorrect answers" and "did not portray her knowledge and experience." SO noted in the Applicant Review Summary for the selectee that the selectee was prepared for his interview and had excellent leadership skills and contracting experience. In Complainant's Applicant Review Summary, SO stated that Complainant gave "adequate" answers to the interview questions but had not demonstrated good leadership skills. SO stated in her affidavit that she and the Division Chief followed the panel's recommendation. She noted that Complainant was not on the panel's list of recommended candidates and that the selectee "stood out from the other applicants and had the best interview" of the three recommended candidates. The Division Chief also stated that she and SO followed the panel's recommendation and that the selectee was the top candidate.
Complainant has not shown the Agency's articulated reasons to be pretextual. As noted above, the evidence does not establish that the Division Chief made the comment that Complainant attributed to her. Similarly, SO denied asking Complainant whether she really thought that she would get the position, and Complainant has produced no evidence to corroborate her allegation that SO made such a statement. Further, although Complainant has argued that she was better qualified for the position than was the selectee, she has not shown that her qualifications were plainly superior to those of the selectee's or that her interview performance was superior to those of the recommended candidates. The evidence of record does not establish that the Agency's reasons are unworthy of credence or that discriminatory reasons more likely motivated the Agency's choice of the selectee.
Transfer to a Different Position
Complainant has alleged that the Agency discriminated against her on the bases of race, sex, age, and reprisal for protected EEO activity when managers tried to force her to transfer to a position in a different division. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not shown the articulated reasons to be pretextual.
The Division Chief and SO stated that Complainant expressed an interest in a lateral transfer out of the division. When the Division Chief learned of a GS-12 vacancy in another division, she informed Complainant. The Division Chief was not aware that the position was a non-supervisory position or that Complainant had changed her mind about leaving the division.
Complainant has not shown that this explanation is unworthy of credence or that discriminatory motivation more likely motivated the managers' actions. The evidence of record supports the managers' statements that they believed that Complainant wanted to transfer out of the division. Further, although Complainant asserted that the EEO Specialist seemed to be helping management by looking for a position for her, the record indicates that Complainant requested a transfer. We note, for example, that the EEO Specialist sent Complainant an October 19, 2009, e-mail in which the EEO Specialist stated that Complainant initially asked to be moved to a different position. Complainant has not disputed the accuracy of that e-email.
Denial of Requests for Training
Complainant has alleged that the Agency discriminatorily denied her requests for training. SO stated that she approved six of Complainant's twelve requests, that six classes were sufficient for such a short time period, and that Complainant and other first-line supervisors were "pivotal" to the work flow.
Complainant has not shown that SO's explanation was a pretext for discrimination. For example, Complainant has not asserted that the Agency permitted other first-line supervisors to take more than six training classes during a similar time period. Complainant has not shown that SO denied Complainant's training requests for discriminatory reasons.
Hostile Work Environment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. 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 Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8.II.D at 8-11-16 (May 20, 1998) (EEOC Compliance Manual on Retaliation).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, Complainant has not established that discriminatory animus motivated her non-selection for the vacant position, efforts to obtain a lateral transfer for her, or the denial of her training requests.
Further, the record does not support Complainant's allegations that SO made jokes about her and tried to humiliate her during staff meetings, that SO directed Complainant's subordinates to make insulting remarks and to interfere with Complainant's work performance, and that employees tampered with Complainant's desk. No witness corroborated Complainant's allegations. SO denied that she singled out Complainant in staff meetings or told anyone to harass Complainant, and the Division Chief stated that she had never seen SO single out or humiliate Complainant. E1 stated that she did not see anyone tamper with the items on Complainant's desk. E2 denied telling Complainant that she had been asked to disturb Complainant's desk, that she had tampered with the desk, or that E3 had pressured her to harass Complainant. E3 denied tampering with Complainant's desk or coercing other employees to harass Complainant. E4 and E5 stated that no one had coerced them into saying anything about Complainant or interfering with Complainant's work.
Complainant has not shown that, because of her membership in a protected group, she was subjected to abusive or hostile conduct that was severe or pervasive. Accordingly, we find that Complainant has not established that the Agency subjected her to a hostile work environment on the basis of race, sex, age, or reprisal for protected EEO activity.
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 decision and its finding of 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
April 17, 2015
Date
1 The Agency initially dismissed Complainant's complaint on the ground that Complainant did not file the formal complaint in a timely manner. Complainant appealed the dismissal to this Commission, and the Agency rescinded the dismissal. By letter dated May 27, 2010, we administratively closed Complainant's appeal. EEOC Appeal No. 0120101069.
2 At some point after the selection at issue here, the Division number was changed to OEM-2. To be consistent, this decision refers to the Division as "OEM-1."
3 The Commission's regulations provide that "any statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal." 29 C.F.R. � 1614. 403(d). "Any statement or brief in opposition to an appeal must be submitted to the Commission . . . within 30 days of receipt of the statement or brief supporting the appeal." Id. � 1614.403(f). The record reflects that the Commission granted Complainant an extension of time until January 13, 2012, to file her statement or brief. Complainant submitted her brief within the allotted time, and the Agency submitted a timely reply brief. The parties subsequently submitted additional briefs. The regulations, however, do not provide for any further submissions on appeal. Accordingly, we decline to consider the parties' late submissions.
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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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