0120110521
09-06-2012
Cozetta Lee, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Cozetta Lee,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120110521
Hearing No. 410-2009-00273X
Agency No. IRS-08-0883-F
DECISION
Complainant timely filed an appeal from the Agency's September 16, 2010, 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 Agency properly issued a final decision in this case; 2) whether the Agency's final decision was untimely issued; 3) whether the Agency improperly failed to provide Complainant with a copy of the hearing transcript; 4) whether the Agency improperly failed to engaged in discovery during the hearing process; 5) and whether the Agency's final decision properly found that Complainant did not prove that she was non-selected for a GS-1515-14 Operations Research Analyst position because of her age, sex, or race.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-1515-13 Operations Research Analyst at the Internal Revenue Service (IRS) facility in Atlanta, Georgia. The Agency advertised a GS-1515-14 Operations Research Analyst position in a vacancy announcement that closed on April 28, 2008. Complainant applied for the position and was listed on the promotion certificate with three other applicants. On August 18, 2008, the selection panel interviewed Complainant. Complainant was not selected for the position. The Agency chose two applicants for the position. One applicant (S1) was a 33 year-old African-American female, and the other applicant (S2) was a 46 year-old Caucasian female.
On November 3, 2008, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (52 years old) when, on or about August 26, 2008, the Agency did not select her for the position of GS-14 Operations Research Analyst.1
In an investigative statement, Complainant stated that she applied for the GS-14 Operations Research Analyst position prior to the April 28, 2008, closing date, and was notified via email that she was scheduled for an interview on August 18, 2008. Report of Investigation (ROI), Exhibit 4, p. 6. Complainant also stated that she was subsequently notified that she was not selected via email. Complainant stated that she believed that the employees who were selected have had intimate relationships with the Selecting Official. Complainant further stated that her Manager (Manager) informed her before the selections were made that the Selecting Official had said that Complainant would never be promoted.
The Selecting Official (48 year-old Caucasian female) stated that application packages were ranked, and the best-qualified candidates were interviewed, including Complainant. ROI, Exhibit 5, p. 2. The Selecting Official stated that she was briefed by a member of the ranking panel on the unanimous recommendation of two candidates along with a verbal basis for their decision, and she concurred with the panel's recommendation.
The Selecting Official stated that Complainant was considered for the position, but the selectees were better qualified. She stated that S1 previously was a GS-13 Operations Research Analyst with a demonstrated track record of delivering complex research accurately and on time. The Selecting Official stated that S1's research was "extremely well-received" by senior Agency executives and enhanced the credibility of the division. The Selecting Official further stated that S1 has a Masters Degree in Science and Mathematics.
The Selecting Official stated that S2 was chosen because she was a GS-14 Senior Policy Analyst who had demonstrated very strong leadership and technical skills. She further stated that S2 was instrumental in delivering research used in the Taxpayer Assistance Blueprint project, which is a top Agency priority. The Selecting Official noted that S2 has a Masters Degree in Statistics.
The Selecting Official further stated that, during an operations review with the Manager, she indicated that the Manager needed to provide Complainant with a sufficient amount of work that was commiserate with her grade, and although Complainant had expressed an interest in advancing, she would not be competitive if she did not perform more challenging work.
The Supervisory Program Analyst (SPA) (48 year-old female, unspecified race) stated that she sat on the interview panel along with other research chiefs. ROI, Exhibit 6, p. 1. SPA stated that she recalled that Complainant was a "bit nervous" during her interview, spoke well about the general process, but did not give any details about her technical contributions to any work project. She further stated that the selectee for the position needed to be very strong technically and as an overall leader, but Complainant did not illustrate a technical expertise that would suggest that she could be a go-to person and did not provide an example of being a strong technical analyst in her previous project work.
SPA stated that S1 was chosen for the position because of her "strong interview" in which she was able to discuss in detail her technical roles in various projects and give examples of her leadership in research. SPA further stated that S2 was chosen because she was able to give examples of her technical contributions to numerous research projects as well as her leadership roles as a technical expert. She stated that, while the selectees spoke in-depth about their technical contributions, Complainant did not discuss any examples of her technical contributions beyond analyzing data, which was too generic.
The Research Group Chief (RGC) (46 year-old Caucasian male) stated that he recalled that Complainant was nervous, and in comparison to interviewees, performed poorly in the interview. ROI, Exhibit 7, pp. 2, 3. RGC stated that Complainant lacked in-depth knowledge of the specific skills and specific completed research projects for the position. He further stated that he recommended the two selectees because their skills and abilities were well beyond the other candidates' skills and abilities.
The Chief of Wage and Investment, Research, and Analysis (Chief) (50 year-old Caucasian male) stated that he served as a member of the interview panel. ROI, Exhibit 8, pp. 2, 3. The Chief stated that the interview panel asked a series of questions of the applicants using the same rotational method of questioning for all interviewees. He further stated that each panel member took notes as the interviewee responded, and the panel discussed the responses and reached a consensus in terms of who performed best/worst. The Chief stated that Complainant delivered a "fair interview" and appeared nervous and impatient at times. The Chief further stated that Complainant's responses overall failed to seize the opportunity to demonstrate her readiness for the senior technical position, and when compared to other interviewees, Complainant did poorly in preparing for the interview.
Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the Agency found that Complainant established a prima facie case of age and race discrimination but did not establish a prima facie case of sex discrimination. The Agency further found that Complainant failed to prove that the Agency's non-discriminatory explanation for its actions was a pretext for unlawful discrimination. Consequently, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that she asked the AJ to issue a "Notice of a Right to Sue," but did not ask the Agency to issue a final decision. Complainant further maintains that the Agency's final decision is untimely because the AJ issued an Order of Dismissal on July 22, 2010, that was received by the parties on July 26, 2010, but the Agency did not issue its final decision until September 12, 2010. Complainant argues that the Agency should have issued its final decision within 40 days of its receipt of the AJ's Order of Dismissal because the final decision does not fully implement the AJ's decision. The Agency requests that we affirm its final decision.
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 (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
Issuance of a Final Agency Decision
The record reveals that on July 16, 2010, the AJ convened a hearing on Complainant's complaint. Before the hearing, the AJ informed the parties that he denied Complainant's request to have a particular witness testify at the hearing. Complainant's representative objected to the AJ's denial and asserted that the AJ's determination was "an unfair statement and makes this hearing a sham." Hearing Transcript (HT), p. 9. The AJ asked the representative if he would like to waive the hearing and ask for a final Agency decision without a hearing, and the representative responded that he would like a notice of a "right to sue." Id. The AJ responded, "Well sir, if you were familiar with the federal process, you'd know that there is no such thing in the federal process." Id.
Complainant subsequently accused the AJ and the Agency's attorney of improperly engaging in ex parte communication about the case. At the request of the Agency's attorney, the AJ informed Complainant's representative that, if he wanted to file Complainant's complaint in federal court, he could inform the AJ in writing so that he (the AJ) could dismiss Complainant's hearing. The AJ further stated that once the complaint is filed in federal court, administrative processing would cease.
Complainant's representative further stated the following:
So basically, you know, this is a travesty of justice. I've been manipulated by [the Agency's attorney]. You [the AJ] seem to be going along with it. And I would choose the fifth option to receive a notice of a right to sue and take it into federal court.
HT, p. 14.
The record reveals that, on or about July 16, 2010, Complainant and her representative submitted a handwritten notice to the AJ in which Complainant stated the following:
We request a notice of right to sue from [the AJ] in Case # EEOC No. 410-2009-00273X Agency No. IRS-08-0883F. I hereby withdraw my request for a hearing to file this case in Federal District Court.
In an Order of Dismissal dated July 22, 2010, the AJ dismissed Complainant's hearing request on the basis that Complainant filed her complaint in federal court. The Agency issued its final decision on September 16, 2010
Upon review, we find that the AJ properly dismissed Complainant's hearing request, albeit on the wrong basis. Although Complainant and her representative expressed an intention to file her complaint in federal court, there is no evidence that Complainant filed a civil action under 29 C.F.R. �1614.401, which would terminate the processing of her administrative complaint. However, Complainant clearly expressed her intention to the AJ at the hearing and in writing to withdraw her hearing request. Therefore, we find that the dismissal of Complainant's hearing request was proper, although it should have been done on alternative grounds.
Complainant contends that she requested a "right to sue" letter, not a final decision. However, the AJ correctly instructed Complainant that her request for a "right to sue" letter under 29 C.F.R. �1601.28 does not apply in a case involving a federal employee and, therefore, it has no legal effect. Moreover, the AJ also correctly noted that Complainant was entitled to go to court since more than 180 days had elapsed since the filing of her complaint, and final action had not yet been taken. See 29 C.F.R. � 1614.407.2
Because Complainant withdrew her request for a hearing but did not file her complaint in federal court, Complainant's withdrawal of her hearing request was tantamount to a request for a final decision. Complainant contends that the Agency was required to issue its final decision within 40 days of receipt of the AJ's decision, in accordance with 29 C.F.R. � 1614.110(a). However, this regulation applies to AJ decisions on the merits of complaints or procedural dismissals of claims pursuant to 29 C.F.R. � 1614.107, not dismissals of complainants' hearing requests. As such, the Agency had 60 days to issue a final decision under 29 C.F.R. � 1614.110(b). In this case, the AJ dismissed Complainant's hearing request on August 2, 2010, and the Agency issued its final decision on August 16, 2010, which was within the 60-day time limit. Consequently, we find that the Agency issued its final decision in a timely manner.
The Investigation and Prehearing Stage
Complainant further contends that the Agency's final decision relied heavily on an illegal investigation that was conducted by an inexperienced friend of the Selecting Official. Our regulations provide that an agency "shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint." 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id. The investigator must maintain the appearance of being unbiased, objective, and thorough. Moreover, the investigator must be neutral in the approach to factual development of the record. EEO MD-110, at Chap. 6, � VI.C.
After a thorough review of the record, we find that the investigatory record in this case consists of appropriate evidence that allows a reasonable fact-finder to draw conclusions as to whether discrimination occurred. Moreover, Complainant has not provided any evidence that substantiates her claim that the investigator conducted the investigation in a biased, improper, or inappropriate manner. Consequently, we find that the Agency conducted a proper and adequate investigation. Moreover, one of the cures for an allegedly biased investigation is to proceed with a hearing before an AJ. In this case, Complainant withdrew her request for a hearing, and in doing so, forfeited the opportunity to supplement the investigative record.
Complainant also contends that the Agency refused to participate in discovery, that the hearing was conducted before a prehearing conference was held, and that the Agency refused to provide Complainant with a copy of the hearing record. The record reveals that the AJ issued an Acknowledgment and Order dated August 31, 2008, which provided that discovery must be completed within 90 days of the receipt of the Order. Complainant received the Order by September 8, 2008. Therefore, if Complainant wanted to conduct discovery, she should have done so by December 7, 2008. Instead, on July 7, 2010, Complainant untimely served the Agency with notice of her deposition request for 10 Agency employees and officials on July 12 and 14, 2010, and the Agency filed a motion for a protective order the same day. The Agency did not produce its employees at the scheduled depositions because its motion was outstanding but appeared at the July 16, 2010, scheduled hearing.3 Before the hearing, the AJ held a prehearing conference at which he approved and rejected requested witnesses, but Complainant then withdrew her hearing request. Therefore, we find that when Complainant chose to withdraw her hearing request, she also chose to extinguish all outstanding hearing matters, including prehearing determinations and discovery. As such, we do not find that Complainant was denied a fair opportunity to engage in discovery and prehearing conferencing during the hearing stage.
Complainant further maintains that the Agency did not give her a copy of the transcript of the July 16, 2010, hearing. However, on appeal, Complainant submitted a copy of the hearing transcript from the July 16, 2010, proceeding. Consequently, we find that Complainant has not suffered any harm with respect to this matter.
Non-Selection
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a 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, 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).
For instance, to establish a prima facie case of disparate treatment on the bases of race or sex, Complainant must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Secur. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009).
Once Complainant has established a prima facie case, the burden of production 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). 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 her obligation to show 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, 519 (1993).
In this case, the record reveals that Complainant applied for and was deemed qualified for a GS-14 Operations Research Analyst position. The Agency did not select Complainant for the position but selected a 33 year-old African-American female and a 46 year-old Caucasian female. The selectees are the same sex as Complainant, and Complainant has not provided any evidence that would support an inference of sex discrimination. One of the selectees is a different race than Complainant, and both selectees are substantially younger than Complainant. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (holding that in age cases, the comparative need not be outside the protected group, i.e., under 40, but must be substantially younger than Complainant); Hammersmith v. Social Secur. Admin., EEOC Appeal No. 01A05922 (March 6, 2002) (while there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years). Consequently, we find that Complainant established a prima facie case of age and race discrimination but did not establish a prima facie case of sex discrimination.
We further find that the Agency provided legitimate, non-discriminatory reasons for not selecting Complainant for the position. Specifically, management stated that Complainant was not selected for the position because Complainant was a "bit nervous" during her interview and did not give any details about her technical contributions to any work project. The Agency further stated that the selectees for the position needed to be very strong technically and as an overall leader, but Complainant did not illustrate technical expertise that would suggest that she could be a go-to person and did not provide an example of being a strong technical analyst in her previous project work.
Additionally, the Agency stated that S1 was chosen for the position because of her "strong interview" in which she was able to discuss in detail her technical roles in various projects and give examples of her leadership in research. The Agency further stated that S2 was chosen because she was able to give examples of her technical contributions to numerous research projects as well as her leadership roles as a technical expert. The Agency stated that, while the selectees spoke in-depth about their technical contributions, Complainant did not discuss any examples of her technical contributions beyond analyzing data, which was too generic.
Complainant alleged that she believed that the employees who were selected have had intimate relationships with the Selecting Official, and the Selecting Official had said that Complainant would never be promoted. However, Complainant's bare assertions are insufficient to rebut the Agency's proffered explanation. Moreover, Complainant has not shown that she possessed qualifications for the position that were plainly superior to the selectees' qualifications. Bauer v. Bailor, 647 F.2d 1037. 1048 (10th Cir. 1981); Williams v. Dep't of Education, EEOC Request No. 05970561 (Aug. 6, 1998). Consequently, we find that the final decision properly found that Complainant failed to show that the Agency's legitimate, non-discriminatory explanations are pretext for unlawful discrimination.
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 for the reasons set forth in this decision.
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
September 6, 2012
Date
1 We note that Complainant's complaint also contained the allegation that her supervisor harassed her when he screamed, yelled, and banged on the desk. The Agency dismissed this claim on December 16, 2008. However, because Complainant does not contest the dismissal of this claim on appeal, we exercise our appellate discretion to decline to review this claim herein. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (Nove. 9, 1999).
2 EEOC Regulation 29 C.F.R. �1614.407 provides that "a complainant who has filed an individual complaint . . . is authorized under Title VII, the ADEA, and the Rehabilitation Act to file a civil action in an appropriate United States District Court:
(a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and a final decision has not been issued;
(c) Within 90 days of receipt of the Commission's final decision on an appeal; or
(d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission."
3 We note that both parties submitted pre-hearing reports in May 2010.
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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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