0120090494
08-20-2010
Barbara T. Fox, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Barbara T. Fox,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120090494
Hearing No. 570-2007-00828X
Agency No. DOS-F-025-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal filed on November 7, 2008, from the Agency's September 30, 2008, 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. For the reasons that follow, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented in this appeal are whether the Administrative Judge (AJ) properly issued a decision without a hearing, and whether she correctly found that the Agency did not discriminate against Complainant as alleged.
BACKGROUND
On November 7, 2006, Complainant sought EEO counseling. On December 7, 2006, Complainant filed a complaint alleging that the Agency discriminated against her based on her race (African American) and in reprisal for prior EEO activity when: (a) on November 2, 2006, she was reassigned to a new, reclassified position; and (b) on October 18, 2006, the Agency denied her request to participate in a telework program. On August 23, 2007, the Agency sent the Report of Investigation (ROI) and notice of rights to Complainant. Complainant requested a hearing before an EEOC AJ. On December 20, 2007, the Agency filed a Motion for a Decision Without a Hearing (Agency's Motion), to which Complainant did not respond. The AJ issued a decision on September 24, 2008, granting the Agency's Motion and finding that the Agency did not discriminate against Complainant as alleged. The Agency issued its Final Order, agreeing to implement the AJ's decision.
Complainant began her service with the Agency in 1972. At the time of the events raised in this complaint, Complainant recently had been assigned to the position of Grants and Cooperative Agreements Specialist, GS-1101-13, in the Office of Middle East Partnership Initiative, Bureau of Near Eastern Affairs (NEA/PI). Prior to this position, she was a Program Analyst, GS-343-13, in the Office of Northern Gulf Affairs, Bureau of Near Eastern Affairs (NEA/NGA). Complainant's first-level supervisor, the Director of Grants Management and Evaluation, NEA/PI (S1), began his assignment in September 2006, and Complainant's second-level supervisor, the Deputy Director, NEA/PI (S2), joined the Office in July 2005.
In her decision, the AJ determined that the record was adequately developed for a decision without a hearing, defining the record as the ROI and the Agency's Motion, and further determined that no genuine issues of material fact or credibility determinations remained. In entering a decision in favor of the Agency, the AJ found that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not provide, nor did the record contain, evidence of pretext. The Agency explained that, regarding issue (a), in 2006, S2 began to realign the position descriptions (PDs) of NEA/PI staff to reflect the actual duties performed, and, as to issue (b), the Agency stated that it did not approve Complainant's requests for telecommuting, because she failed to provide a detailed written description of the specific job tasks that she proposed to perform at her alternate work site.1
CONTENTIONS ON APPEAL
Complainant contends, inter alia, that the Agency did not initially intend to transfer her co-worker (Caucasian female) (EM) to the new PD but eventually did so. She also avers that she submitted a list of the job tasks that could be performed away from the office. In addition, she asserts she requested that the additional allegations be added to her complaint and investigated.
The Agency argues that Complainant's attempt to dispute facts comes too late and should have been raised in a response to the Agency's motion. The Agency further argues that her statement of the facts does not raise genuine or material issues, nor are the challenged facts relevant to the ultimate outcome of this matter under applicable EEO law. The Agency states that the AJ's determination to issue a summary judgment decision was correct. It also argues that neither of Complainant's charges describes an adverse action, and also fail to state a claim.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999).2
Summary Judgment
Initially, we consider whether the AJ properly issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when s/he finds that there are no genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure in the Federal Rules of Civil Procedure, Rule 56. 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). The AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
In ruling on a motion for summary judgment, a fact-funder's function is not to weigh the evidence but rather to determine whether there are genuine issues for a hearing. Anderson v. Liberty Lobby, Inc., 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. In this matter, we find that summary judgment was proper, in that the record is adequately developed for a decision on the merits, and no genuine issues of material fact or credibility determinations remained to be decided.
Legal Framework - Disparate Treatment
In her complaint, Complainant alleges disparate treatment discrimination because of her race and prior EEO activity. The analysis of such claims is patterned after the three-step scheme announced by the U.S. Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the Complainant has established a prima facie case (or we assume so), the Agency is required to articulate a legitimate, nondiscriminatory reason for its actions. To prevail, Complainant must demonstrate, by a preponderance of the evidence, that the Agency's reason(s) for its action was a pretext for discrimination, i.e., that the Agency's reason was not its real reason and that it acted on the basis of discriminatory animus, here, race and reprisal. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
A Complainant may establish a prima facie case of reprisal by showing that: (1) Complainant engaged in a protected activity; (2) the acting Agency official(s) was aware of the protected activity; (3) subsequently, Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Coats v. EEOC, EEOC Appeal No. 0120044333 (May 17, 2007); see Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). "Protected activity" is action taken in opposition (opposing a practice made unlawful by an EEO statute) or participation in an EEO activity (filing a charge, testifying, assisting, or participating in any part of the EEO process). See Section 8: Retaliation, EEOC Compliance Manual.
Findings
As explained in her record affidavit, Complainant alleged discrimination based on race, initially believing that only she would transfer to the new PD and not EM; however, she acknowledged that EM has been transferred. In addition, she stated that she has performed "grants work" since 2004, that she has the "same duties under both titles," and that the only difference is an increase of her warrant (ability to contract on behalf of the Agency). She contended that her managers told her that telework was not available for her position, although she insisted that was not true and cited in comparison a Caucasian pregnant employee and a Caucasian Director on extended leave.
Assuming for purposes of further analysis that Complainant established a prima facie case of discrimination based on race, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S2 explained that when he joined NEA, he found that employees' PDs did not reflect the actual duties performed, and he began to revise them to reflect the actual duties performed. The first new PDs included the new position of Grants and Cooperative Agreements Specialist, to which the Agency transferred both Complainant and EM.3
The Agency stated that its policy for telework required that (i) the arrangement must benefit the mission of the Agency; (ii) the job cannot require access to classified information on a daily basis; (iii) the job duties must be portable, not requiring daily presence in the office; and (iv) the requesting person must submit a description of the specific job duties to be performed at the alternate work site. Complainant's supervisors from 2005 to November 2006 testified that her job duties were unsuitable for telework, in that her duties required that she use classified information on a daily basis; that she worked as part of a team requiring interaction on a daily basis; and that she failed to provide a detailed written description of the specific job tasks that she proposed to perform at her alternate work site. Complainant, instead, submitted a summary status report of all matters that were assigned to her.
In her affidavit in regard to her reprisal claim, Complainant stated that the "activity that may have brought about the circumstances cited in my complaint was my contacting [the] Union Representative...via email on March 31, 2006 in relation to [S1's] denial of my second telework request." (ROI, Exhibit 10). Calling a union representative for assistance is not considered protected activity and, without more, does not form the basis for a prima facie case of retaliation.4
Applying the legal standards described above, we find that Complainant's claim based on retaliation must be denied. She has not established a prima facie case of reprisal discrimination, in that she has not show that she engaged in prior protected EEO activity. Even assuming, for the sake of argument, that she had done so, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Having found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden returns to Complainant to demonstrate pretext. To prevail, Complainant must demonstrate that the reasons articulated by the Agency for its actions were not its true and real reasons but were taken in order to discriminate against her and influenced by legally impermissible criteria, e.g., her race or prior EEO activity. Complainant must show, through preponderant and probative evidence, that the explanation offered by the Agency to create new PDs and deny telework were made in order to discriminate against her. In the absence of such evidence, we find that Complainant has not demonstrated pretext.
CONCLUSION
After a review of the record in its entirety and consideration of all statements submitted on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order. We find that the AJ's issuance of a decision without a hearing was appropriate, and the preponderance of the evidence of record 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
August 20, 2010
Date
1 The AJ declined to address additional claims Complainant raised in her rebuttal affidavit; however, the AJ allowed Complainant 45 days from receipt of her Decision to initiate EEO counseling and directed the Agency to accept her contact as timely. Although Complainant states on appeal that she wishes to pursue these claims, the record does not indicate whether she did so. When she first raised these issues, the Agency offered to investigate them, but Complainant declined the offer in an email dated August 27, 2007.
2 References cited in this decision and other information are available on the Commission's website: www.eeoc.gov.
3 Before the transfer, the Agency agreed to conduct a desk audit of the position encumbered by Complainant and EM to determine whether they should be transferred into the new PD. In December 2006, the auditor concluded that they should be transferred, because the new PD more closely matched the duties they performed.
4 Complainant's contact with a union representative is a right generally conferred to employees under their Collective Bargaining Contract.
??
??
??
??
2
0120090494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090494