0120121715
09-26-2012
Carolyn E. Graham, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Carolyn E. Graham,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120121715
Hearing No. 490-2011-00085X
Agency No. IRS-10-0473-F
DECISION
Complainant filed a timely appeal from the Agency's February 7, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
Complainant was a former Clerk (Data Transcriber), Full Time Seasonal, GS-0303-4, at the Agency's IRS Memphis Service Center in Memphis, Tennessee.
During an initial period of employment with the Agency, Complainant was terminated in August 2000 during her probationary period from her position in Memphis as a full-time seasonal Data Transcriber. However, five months later, the Agency rehired Complainant on January 13, 2001, again as a full-time seasonal Data Transcriber in the Memphis office. She continued in this position until September 2005, when Complainant's employment ended because of a Reduction-in-Force (RIF). The paperwork shows the termination was based on the RIF, and not Complainant's performance. Her former supervisor stated that Complainant was a good worker. She received a within grade, a promotion from grade 3 to 4 and an evaluation showing that her performance was more than fully successful. There were no disciplinary actions noted in the record.
In 2010, the Agency issued two announcements recruiting clerks for multiple vacancies in the Memphis office where Complainant had previously worked. The vacant positions were essentially the same position that Complainant had held when she was laid off in 2005. Complainant applied under both announcements and, after initial review, her name was among those candidates placed on the Best Qualified List (BQL).
Eighteen applicants were selected. Complainant was not among them. Some of the selectees were "hired off the street," and some were prior employees who had worked with Complainant and whom she identified by name.
On July 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for her prior protected EEO activity1 when on or about April 10, 2010, she was not selected for the position of Clerk, GS-0303-04, under vacancy announcement numbers 10MEI-WIX0025-0303-04BS and 10MEI-WIX00240303-04DS.
At the conclusion of the investigation into her complaint, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case determined that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on January 31, 2012, finding no discrimination had occurred.
Based on the evidence gathered during the investigation, the AJ found, as a matter of fact, that Complainant's name was "flagged" in the Agency's ALERTS database because she had been previously terminated during her probationary period due to unacceptable performance. The AJ then determined that because there was a red flag (ALERTS) entered at some point in Complainant's record, the selecting official(s) passed over Complainants name in making the final selection decisions. The AJ reasoned that, although the investigative record establishes that she had prior EEO activity, Complainant had "failed to establish a causal connection between her prior EEO activity and her non-selection." Consequently, the AJ concluded that the Agency was entitled to summary judgment in its favor.
The Agency's final action implemented the AJ's decision. The instant appeal from Complainant followed.
STANDARD OF REVIEW
As this is an appeal from a decision issues without a hearing, 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). See also 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").
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). 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).
On appeal, Complainant contends that the AJ erred in entering summary judgment because there are issues of material fact in dispute and the reasons offered by management officials were not credible. She contends that she was more qualified for the positions filled than the selectees and was only bypassed because her name was "flagged" because of her prior EEO case. She states that the Agency's proffered reason for bypassing her name on the best qualified list was because of her termination in 2000. She argues that this reason is not credible because the Agency rehired her only five months after her termination, and she successfully performed in the very position being advertised for until the 2005 RIF. In essence, Complainant contends that the Agency failed to articulate any real reason for her non-selection and that its purported justification was not supported by any evidence and is a pretext for retaliation. She states that credibility is at issue because the record shows that even the Agency witnesses dispute each other and the record is not even clear who was responsible for the selections at issue.
Title VII at Section 717(a) requires that all employment actions be made free from discrimination, including reprisal. In a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
A review of the record reveals that it is undisputed that Complainant had previously worked for the Agency for a number of years, had filed an EEO complaint against Agency management in May 2005, timely applied for the multiple vacancies in question, met the qualifications and was placed on the best qualified list, but her name was "bypassed" in making the final selections. The record also reflects that Complainant's prior EEO activity was against her former supervisor, who works in the office to which Complainant was applying and reports to the same official whom the Agency identified as the decision maker for the selections at issue. This evidence is sufficient to establish a prima facie case of reprisal.
The burden shifts to the Agency to rebut the presumption established by the prima facie case by articulating a legitimate, nondiscriminatory reason for the non-selections. While the Agency's burden of production is not onerous, it must nevertheless provide a specific, clear, legitimate and individualized explanation that provides an opportunity for Complainant to satisfy her ultimate burden of proof of pretext.
The current record, as developed during the investigation of the complaint, leaves many significant questions unanswered about how and why Complainant's name was "bypassed" in the selection process. Most significantly, it is completely unclear who made the selection decisions, including the decision to bypass Complainant. The investigative record contains an official Agency document that appears to have been generated by Human Resources, that lists the selectees for the positions at issue and indicates that the selecting official was the Department Manager, Campus Support. Investigative Report (IR), Exhibit 12. However, the Department Manager, in her affidavit, denies being the selecting official. Other witnesses indicate that the Human Resources Specialist was the selecting official. However, the Human Resources Specialist also denies being the selecting official. No management official has affirmatively indicated that he or she made the decision to pass over Complainant's name. Each of the management officials contradicts the other.
The AJ's decision indicates that the Agency asserts that Complainant's name was passed over on the best qualified list because she was "flagged" in its ALERTS system. However, the Labor Relations official asked about this matter also presented contradictory testimony, first indicating that he had no idea why Complainant was not reinstated, and then stating that Complainant's name appeared in the ALERTS system based on her termination in 2000. When asked, however, he could not explain why her termination had not prohibited her rehiring in 2001, but had in the selections at issue. He stated that this question would have to be asked of the selecting officials.
Significantly, there is no evidence in the record indicating when Complainant was flagged in the ALERTS system or who made the decision to enter information, if it was indeed there. In addition, there is no documentary confirmation of the nature of the alert.
The Agency also makes much of the fact that the purported selecting officials (although the record, as already stated, is unclear as to their identity) stated they had no knowledge of Complainant's prior EEO activity. However, it is undisputed that Complainant filed an EEO complaint against the Agency in 2005, and that one of the supervisors she named in that complaint was currently working for one of the purported selecting officials. The record contains no evidence of the nature of the prior EEO complaint or how it was resolved. In addition, there is no indication how long the matter took to resolve. Credibility determinations are needed to resolve whether or not this supervisor shared her knowledge of Complainant's prior EEO activity with the officials responsible for the instant selections. Even if it is later determined that the selecting officials were not aware of Complainant's prior EEO activity, but that they relied on negative information in the ALERTS system, the source of that negative information may have been motivated by retaliatory animus which would have tainted that selection process.
There is also no evidence that a search of the ALERTS system was conducted for any of the other applicants for the positions at issue and that similarly situated applicants were treated the same as Complainant. In addition, the record contains no explanation of how long negative information remains in the ALERTS system, especially when an individual, like Complainant, had subsequent long-term positive employment with the Agency.
Reviewing the record as a whole, we find that the undisputed evidence of Complainant's superior qualifications, taken together with the above-described flaws in management's explanation, creates a genuine issue of material fact. There is also no contemporaneous documentation supporting the explanation. This lack of evidentiary support, along with the inconsistent reasons asserted by the Agency, could lead a reasonable factfinder to disbelieve the Agency and to render a judgment in Complainant's favor.
The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In conclusion, in this case there are simply too many unresolved issues to uphold the AJ's decision.
After a careful review of the record, we find that the AJ erred when she concluded that there was no genuine issue of material fact in this case and that the Agency was entitled to judgment as a matter of law.
CONCLUSION
Therefore, we REVERSE the Agency's final action and REMAND the matter to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit in Birmingham, Alabama, within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 tends 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
September 26, 2012
__________________
Date
1 The record shows that Complainant had filed an EEO complaint against the Agency in May 2005, shortly before she was subjected to the RIF.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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