0120103263
12-10-2010
Alease Broadwater, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Alease Broadwater,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120103263
Hearing No. 570-2008-00624X
Agency No. 2008015
DECISION
On August 9, 2010, Complainant filed an appeal from the Agency's July
9, 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). For the
following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Legal Administrative Specialist at the Agency's facility in
Washington, DC. On February 6, 2008, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race
(African-American) and age (59) when, Complainant received a "Minimally
Successful" rating for FY 2007 annual performance evaluation.
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. The Agency filed a motion for a decision
without a hearing. Complainant responded to the Agency's motion.
Subsequently, the AJ assigned to the case issued a decision without a
hearing on May 20, 2010.
The AJ determined that the matter was appropriate for summary judgment in
that the complaint was investigated and that there were no material facts
in dispute. The AJ assumed that Complainant establish a prima facie case
of discrimination. The AJ found that the Agency articulated legitimate,
nondiscriminatory reasons for the appraisal. The AJ noted that the record
showed that Complainant's performance appraisal consisted of five critical
elements: claims examining timeliness; claims examining accuracy; claims
examining productivity; customer service; and professionalism. The AJ
found that Complainant's supervisor (Supervisor) provided Complainant
with the performance requirements in November 2006 and March 2007.
IN addition, the Supervisor provided Complainant with a midyear
progress review indicating that Complainant's performance was at the
"Fully Successful" level but the Supervisor warned Complainant that she
needed to "slow down on [her] productivity and focus on [her] accuracy."
The Supervisor also provided Complainant with print outs of her accuracy
level. The AJ pointed out that to receive a "Fully Successful" rating,
a Legal Administrative Specialist must have a 94% accuracy and 92% for a
"Minimally Successful" rating. The AJ noted that Complainant's accuracy
rating was 93.56% and received a rating of "Minimally Successful." The AJ
also noted that the Agency used the wrong dates for the rating period
and the reports showed that Complainant's accuracy was actually 91.6%.
The AJ then turned to Complainant to show that the Agency's reasons were
pretext for discrimination. The AJ noted that Complainant indicated
that the Supervisor is younger than Complainant and White. Further,
Complainant claimed that the Supervisor was curt, hostile and made snide
comments. Complainant also asserted that the Supervisor failed to count
100 of her cases when calculating accuracy. The AJ found that Complainant
failed to provide any evidence that race or age was the motivating factor
for the Agency's action. As such, the AJ concluded that the complaint
was appropriate for summary judgment in favor of the Agency.
The Agency issued a final order adopting the AJ's finding that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged. From this decision, Complainant appealed.
CONTENTIONS ON APPEAL
Complainant appealed asserting that the AJ erred in issuing a decision
without a hearing. Complainant claimed that the Supervisor failed to
take into account some 100 cases and miscalculated the number of errors.
As such, Complainant asserted that her accuracy rate was well above
94% and the Supervisor has not explained how she was rated based on a
lower accuracy rate. Accordingly, Complainant asserted that there are
material facts in dispute and that summary judgment was not appropriate.
The Agency argued that the AJ's decision to issue summary judgment was
correct. Therefore, the Agency requested that the Commission affirm
its FAD finding no discrimination.
ANALYSIS AND FINDINGS
Summary Judgment
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the Agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an
appeal from an Agency's final action shall be based on a de novo review
. . ."); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to 29 C.F.R. � 1614.109(g) will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and Agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
Upon review of the record, we find that the matter was adequately
investigated. We note that Complainant asserted that there was a material
fact in dispute. Complainant claimed that the accuracy rate used by
the Supervisor in her rating was not correct. Complainant argued that
the Supervisor failed to take into account 100 cases. In addition,
Complainant contended that she did not commit 32 errors but only 19.
We note that Complainant asserted these claims without providing any
supporting evidence. Further, the Supervisor provided in her affidavit
that she considered 79 of the cases raised by Complainant. The Supervisor
noted that the remaining cases were not considered for Complainant's FY
2007 evaluation they did not occur during the relevant rating period.
We find that Complainant has not shown that there was in fact a dispute
regarding her accuracy rate. Therefore, the Commission finds that the
AJ properly determined that the matter was ripe for summary judgment.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
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, the 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 of the record, we find that the AJ correctly held that
the Agency articulated legitimate, nondiscriminatory reasons for the
performance appraisal. We note that the record showed that the Supervisor
expressed concern regarding Complainant's accuracy rate during the midyear
review as well as other points during FY 2007. Based on the Supervisor's
determination that Complainant's accuracy rate was 93.56%, Complainant
was given a rating of "Minimally Successful." The AJ then correctly found
that Complainant failed to establish that the Agency's reason was pretext
for discrimination based on her race or age. Accordingly, we conclude
that the AJ's decision finding no discrimination was appropriate.
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
FAD.
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
December 10, 2010
__________________
Date
2
0120103263
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103263