0120112878
10-26-2011
Anita Hymes-Grant, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Anita Hymes-Grant,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120112878
Hearing No. 420-2011-00016X
Agency No. 8V0J100007
DECISION
On May 11, 2011, Complainant filed an appeal from the Agency’s April
22, 2011, 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. 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 order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing and (2) whether the AJ erred
as a matter of law in finding that Complainant failed to establish that
she was subjected to race based discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Assistant Director of the Child Development Center at the Agency’s
Keesler Air Force Base, in Biloxi, Mississippi. On March 30, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of race (African-American) when on February 18,
2010, she received a Notice of Decision to Suspend for Five Calendar Days.
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 AJ granted the Agency’s February 11,
2011, motion for a decision without a hearing and issued a decision
without a hearing on March 22, 2011.
The AJ found the following facts: On January 19, 2010, the Child
Development Center (CDC) Director (Director) issued a proposed five-day
suspension to Complainant for failure to complete the National Associate
for the Education of Young Children (NAEYC) accreditation portfolio for
the Keesler AFB CDC. Complainant’s second-line Supervisor (S2) issued
Complainant a notice of the discipline. Complainant was suspended from
February 22-26, 2010.
The AJ determined that Air Force CDCs must be accredited by the NAEYC
and must comply with the NAEYC Accreditation Criteria and Procedures in
order to be accredited. The NAEYC assessors, as part of the site visit
to determine accreditation, require programs to organize portfolios by
the NAEYC Early Childhood Program standards. The portfolio serves as an
opportunity for programs to present evidence of the program’s capacity
to meet the NAEYC Early Childhood Program Standards and Accreditation
Criteria over time. It is also used to track policies and record events
in order to demonstrate current implementation of the NAEYC’s standards
and criteria.
Complainant was assigned as lead to the accreditation portfolio project
and began working on it in March 2009. Although Complainant was not 100
percent responsible for completing the portfolio, she was responsible
for the completion of the portfolio. When the accreditation check was
conducted September 1- 4, 2009, Complainant’s sections were 95 percent
completed. The Director and S2 had to work nights and weekends to ensure
the Center completed all its tasks in order to receive accreditation.
As a result, the Director proposed the five-day suspension because
Complainant failed to take charge and put together the accreditation
portfolio.
The AJ determined that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ further found that
Complainant failed to establish that the Agency’s proffered reasons
were a pretext for discrimination. The AJ found that Complainant failed
to demonstrate that she was discriminated against as alleged.
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 filed an appeal with
the Commission. On appeal, Complainant did not make any arguments.
The Agency requests that we affirm its final order adopting the AJ’s
finding of no discrimination.
ANALYSIS AND FINDINGS
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 first 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).
We find that after a careful review of the record, the AJ appropriately
issued a decision without a hearing. The record reveals that ample
notice of the proposal to issue a decision without a hearing was given
to the parties; a comprehensive statement of the allegedly undisputed
material facts existed; the parties had the opportunity to respond to
the statement, and the parties had the chance to engage in discovery
before responding.
To prevail in a disparate treatment claim such as this, 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 Constr. 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, 441 U.S. at 804
n.14. 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). 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 Ctr. v. Hicks, 509 U.S. 502,
519 (1993). 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. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case
of race discrimination, we find that the record reflects that the
Agency proffered legitimate, nondiscriminatory reasons for its actions.
Specifically, S2 issued Complainant a Notice of Decision to Suspend for
Five Calendar Days on February 18, 2010, for failure to carry out assigned
duties/instructions in a reasonable period of time. S2 provided affidavit
testimony that she chose a five-day suspension to “get Complainant’s
attention” as to the serious nature of her conduct because it was
critical for all tasks and programs of the accreditation portfolio to be
completed in a timely manner to support the Candidacy Materials Package,
which was due September 30, 2009. S2 stated that because Complainant did
not ensure the portfolio was done, or participate in the accreditation
process, she and the Director worked nights and weekends to gather,
produce, and file documents in the correct files for the portfolio.
In order to demonstrate that the Agency’s proffered reasons are not
worthy of credence, Complainant argues that she was never tasked to be
entirely responsible for ensuring the portfolio was completed. However,
we note that Complainant stated in her affidavit that she received an
e-mail from the Director stating that she would be the primary point of
contact on the NAEYC CDC portfolio.
Moreover, S2 stated that Complainant’s role was to assign sections
for the accreditation portfolio and ensure the required data and
information was placed in the portfolio box. S2 never saw any
evidence that Complainant did any work with regard to completing the
portfolio. S2 maintained that Complainant did not participate in the
overall accreditation process and she never saw her working overtime.
The Director also provided testimony stating that had Complainant taken
an active role as the Assistant Director in verifying the data she was
supposed to submit for the accreditation portfolio and helped to verify
that the information received from other staff members was accurate,
she would not have been suspended. Although Complainant testified
that she completed tasks in furtherance of completing the portfolio,
we find that the evidence of record shows that she failed to do so in
an acceptable manner. Further, nothing in the record shows that the
Agency was motivated by discriminatory animus when it disciplined her.
Accordingly, we find that Complainant failed to establish that she was
discriminated against on the basis of her race as she alleged.
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 order adopting the AJ’s finding that Complainant was
not discriminated against as alleged.
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
__10/26/11________________
Date
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0120112878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112878