0120110687
03-05-2012
Terry A. Perlmutter, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Administration for Children and Familes), Agency.
Terry A. Perlmutter,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Administration for Children and Familes),
Agency.
Appeal No. 0120110687
Hearing No. 541-2009-00080X
Agency No. HHS-ACF-0050-2008
DECISION
On November 2, 2010, Complainant filed an appeal from the Agency’s
November 18, 2010, final order 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 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 Program Specialist at the Agency’s Temporary Assistance for Needy
Families facility in Denver, Colorado.
On July 14, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (White), color
(White), age (58), and reprisal for prior protected EEO activity under
Title VII and the ADEA, when: on February 20, 2008, Complainant received
a rating of “Fully Successful” on her 2007 performance appraisal.
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. On March 23, 2010, the Agency submitted its
motion for a decision without a hearing. Complainant responded to the
Agency’s motion on April 14, 2010. On August 2, 2010, the AJ assigned
to the case issued a decision without a hearing.
The AJ found that there were no material facts in dispute. The AJ
noted that the Agency instituted a new performance appraisal system
in 2007. The AJ indicated that the previous system had three positive
rating categories of “Fully Successful,” “Excellent,” and
“Outstanding.” These ratings were reduced to only two categories,
namely “Fully Successful” and “Exceptional.” Complainant’s
prior supervisor (Former Supervisor) provided a written narrative
evaluating Complainant’s performance from January through June
2007. Complainant’s current supervisor (Supervisor) provided a
narrative regarding Complainant’s performance from October through
December 2007. Complainant’s director (Director) was responsible
for signing the appraisal for 2007, and relied on the narratives for
the evaluation. Complainant was issued a rating in February 2008 of
“Fully Successful.”
The AJ then turned to the issue of whether Complainant’s rating of
“Fully Successful” constituted discrimination. The AJ found that
the Director averred that Complainant’s performance rating was based on
information she was provided by the Supervisor. The Supervisor indicated
that Complainant was doing good work and performing in all tasks in a
satisfactory manner. The AJ also found that the written appraisals from
both the Former Supervisor and the Supervisor were similar in nature
and were used in giving Complainant a rating of “Fully Successful.”
Based on the record, the AJ held that the Agency provided legitimate,
nondiscriminatory reasons for its action.
The AJ determined that Complainant failed to show that the Agency’s
reasons were pretext for discrimination. Complainant first argued
that she received higher ratings prior to 2007, when she received an
“Excellent” rating in 2005 and 2006. The AJ noted that the record
clearly showed that the rating system had changed between 2006 and 2007.
Further, Complainant had received the middle rating of “Excellent”
which had been eliminated in 2007. Complainant only offered her own
opinion that she should have received a rating of “Exceptional.”
Further, the AJ noted that the Director had stated to all of her
managers that no one in the organization would receive a rating of
“Exceptional.” Finally, Complainant asserted that the Supervisor
had given a low rating to make Complainant look bad. However, the AJ
determined that this assertion was mere speculation on the part of
Complainant and she had no support for her claim. Complainant also
asserted that the Agency held negative attitudes toward older workers
and had a “mind set” in favor of adding minorities in the workplace.
The AJ determined that Complainant’s assertions alone without support
were insufficient to establish pretext. As such, the AJ concluded that
Complainant failed to establish that she was subjected to discrimination
based on her race, color, age or in reprisal for prior protected EEO
activity when she was issued a rating of “Fully Successful” in
February 2008.
The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant appealed asserting that a hearing
was warranted. Complainant indicated that she not only asserted that
the rating of “Fully Successful” was inappropriate, but that while
other employees also received a “Fully Successful,” they received
more points than she did to support their rating. Complainant argued
that this would negatively impact her ability to apply to other jobs.
Complainant further believed that the AJ clears her docket by routinely
issuing decisions without a hearing
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate.
Complainant provided no support for her bald assertion that the AJ used
summary judgment to clear her docket. Further, we note that Complainant
argued that she received the lowest “Fully Successful” rating in the
office. In her complaint, Complainant challenged the overall rating of
“Fully Successful.” Complainant’s distinction regarding ranking
does not create a genuine issue of material fact. 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.
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).
Upon review, we find that the AJ correctly held that the Agency provided
legitimate, nondiscriminatory reasons for its actions. It is undisputed
that the Agency’s performance appraisal system changed between 2006 and
2007, reducing the positive ratings to only “Fully Successful” and
“Exceptional.” Complainant’s rating was based on the assessment of
her performance provided by both her former and current supervisors. The
Director averred that a rating of “Exceptional” was only issued
based on a very stringent criteria as ordered by upper management.
The Director indicated that Complainant was doing a good job and fully
performing in all aspects of her job. Based on the record, we find
that the AJ properly determined that the Agency articulated legitimate,
nondiscriminatory reasons for the rating. Further, we determine that the
AJ properly found that Complainant’s bald assertions without evidence
were not sufficient to establish that the Agency’s reasons were pretext
for discrimination based on her race, age, and/or prior 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 adoption of the AJ’s decision finding no discrimination
without a hearing.
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
March 5, 2012
__________________
Date
2
0120110687
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110687