01A21332_r
02-06-2003
Janet D. Checketts, Complainant, v. Kenneth W. Dam, Acting Secretary, Department of the Treasury, Agency.
Janet D. Checketts v. Department of the Treasury
01A21332
February 6, 2003
.
Janet D. Checketts,
Complainant,
v.
Kenneth W. Dam,
Acting Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21332
Agency No. 00-4093
Hearing No. 350-AO-8345X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
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.
On December 30, 1999, complainant filed a formal complaint alleging that
the agency discriminated against her on the bases of color (white),
sex (female), national origin (American), race (Caucasian), religion
(Mormon) and disability when on August 13, 1999, she was issued a letter
of opportunity informing her that her work performance was unacceptable.
On February 23, 2000, during the EEO investigation of the complaint,
complainant prepared a sworn statement. Therein, complainant indicated
that she wanted to change the bases of discrimination in her complaint
to age (DOB: 5/18/34) and reprisal for prior EEO activity.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
for its actions were a pretext to mask discrimination. In addition,
the AJ's decision found that complainant had removed the basis of age
in her response to the Agency's Motion For A Decision Without A Hearing.
The AJ, therefore, did not make a finding regarding age discrimination.
The record, however, does not contain a copy of complainant's response
indicating that she withdrew age as a basis. On October 26, 2001,
the agency issued a final order adopting the AJ's findings.
On appeal, complainant argues that she did not intend to remove age as a
basis from her complaint and that due to hearing problems, she was at a
disadvantage during a telephonic hearing held on the matter. The agency
maintains that complainant withdrew age as a basis and requests that we
affirm its final order.
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 material fact. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (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, summary judgment is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has
been adequately developed for summary disposition. After careful review
of the record, we find that the AJ's decision to issue a ruling without
a hearing was appropriate.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII and ADEA
cases alleging discrimination is a three-step process. McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600
F.2d 1003 (1st Cir. 1979). First, complainant must 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 Douglass, 411 U.S. at 802. Next the agency must articulate
a legitimate nondiscriminatory reason(s) for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful, then the complainant must prove, by a
preponderance of th evidence, that the legitimate reason(s) proffered
by the agency was a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Even assuming arguendo, that complainant established a prima facie
case of age discrimination, we find that the agency has articulated
a nondiscriminatory reason for its actions. We find that the agency
has stated legitimate, nondiscriminatory reasons for its actions,
supported by the evidence of record. Specifically, the agency stated
that complainant was experiencing performance problems in the areas of
customer focus; professional courtesy; oral communication/listening;
cause cure and compliance; problem analysis issue disposition and
fundamental technical applications.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). The Commission
finds that complainant has failed to present evidence to support a
finding or create in inference that the agency's articulated reasons
for terminating her are a pretext for discrimination on any basis.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 6, 2003
__________________
Date