0120121463
07-02-2012
Audrey Juriel, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Audrey Juriel,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120121463
Hearing No. 570-2010-00671X
Agency No. 9L2W09018
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 13, 2012 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, Software Requirements Analyst (GS-13) at the Agency's Headquarters Air Force/Information Management Enterprise in Washington, DC.
On September 4, 2009, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of color (Black) and reprisal for prior protected EEO activity under Title VII when: 1) on June 29, 2009, she was not selected for the position of Information Technology Specialist (APPSW), GS-2210-14114, located in the Air Force Headquarters, Enterprise Business Solutions Division; and, 2) on June 3, 2009, she was issued an unfavorable performance appraisal.1
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On December 5, 2011, the AJ issued a decision without a hearing finding no discrimination had been proven. In reaching this decision, the AJ determined that the following undisputed facts had been established during the evidence gathered during the investigation:
Non-selection - In May 2009, Complainant was among 26 applicants for the position of Information Technology Specialist, GS-14, within Headquarters Air Force/Information Management Enterprise (HAF/IME). Complainant was one of the six applicants interviewed by a three person panel. The interviewed candidates were rated according to criteria related to the position, and Complainant was one of the top-ranked applicants with an overall score of 79 points, a score identical to the eventual selectee's score. Complainant was an internal candidate and had held the position of Information Technology Specialist, GS-13, within HAF/IME since March 2008. The selectee (Asian male) was an external candidate. The selection was made in June 2009.
Complainant's third-line supervisor (Caucasian female) was the head of the panel and the selecting official. The selecting official stated that she chose the selectee over other top-rated candidates, including Complainant, because he had a stronger background in software engineering, software architecture and software design.
Performance Appraisal - In June 2009, Complainant received her performance appraisal for the rating period April 1, 2008 to March 31, 2009, from her first-line supervisor (African American female). Complainant had sought EEO counseling several times concerning her previous supervisor (Caucasian female), who left her chain of command in March 2008. On a number of occasions, Complainant had also discussed her concerns about her previous supervisor with her third-line supervisor (the selecting official referenced above).
On the "Appraisal Factors-Manner of Performance" section of the appraisal, Complainant received six 9's out of 9's and three 8's out of 9's on the nine separate categories being rated. Complainant received the 8's in "Problem Solving," "Skill in Work," and "Work Management." Complainant asserts that she had received all 9s in previous appraisal years. In support of the ratings, Complainant's supervisor explained that Complainant did not get a 9 in "Problem Solving" because Complainant needed to be "more of a leader in facilitating meetings" and rely less on "other members of the team to give her direction." She also explained that Complainant did not max out in the categories of "Skill in Work" and "Work Management" because, although she had the skills and ability, there were times Complainant failed to get assignments done in a timely fashion, she did not adequately communicate in advance that she was having issues with completing jobs on time, and at times she gave push-back on taking on certain roles or participating in training activities. The supervisor stated that she rated Complainant on the basis of the activity reports that Complainant, and other employees were required to submit each quarter, feedback and input from project managers and team members, plus project schedules.
Based on this evidence, the AJ determined that the responsible management officials had articulated legitimate, non-discriminatory reasons for the disputed actions, which had not been proven to be pretext designed to mask discrimination.
The Agency issued its final order adopting the AJ's determination that no discrimination had been proven. The instant appeal followed.
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.
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 the material facts are not in dispute.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 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").
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). She must generally 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant conjectures and asserts, inter alia, that summary judgment was inappropriate in this matter. However, Complainant has not identified material facts in dispute which could alter the adjudication of her claims or produced evidence to show that the Agency's explanations are a pretext for discrimination. Complainant has not shown that her qualifications were markedly superior to those of the selectee, or any other evidence which might establish discrimination had occurred.
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 (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
July 2, 2012
__________________
Date
1 Complainant initially raised additional claims of harassment and a July 2009 verbal admonishment, as well as a claim of disability discrimination. She withdrew these claims prior to the AJ's adjudication of her case.
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0120121463
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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