0120141496
05-28-2015
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120141496
Hearing No. 440-2013-00137X
Agency No. 12-R5-FAS-MMG-04
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's March 13, 2014 appeal1 from the Agency's January 22, 2014 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 was a former Agency employee. Complainant had worked as a Marketing Communications Project Manager,
GS-0301-13, at the Agency's Federal Acquisition Service, National Marketing and Communication Division (NMCD), in Chicago, Illinois. In January 2012, Complainant was removed based on the charges of failure to follow supervisory instructions and disrespectful conduct. The NMCD Director (S1 - Caucasian), who was Complainant's immediate supervisor, had proposed her removal.
Non-Selection
In April 2012, Complainant applied for the position of Supervisory Marketing Communications Project Manager, GS-0301-14, advertised under vacancy announcement number 1205033COMP. The position was located in the NMCD. The vacancy announcement indicated that the position was non-bargaining unit.
In May 2012, Human Resources (HR) issued two certificates referring applicants to S1 - the selecting official - for further consideration. The competitive promotion certificate included Complainant (African-American) and four other best qualified applicants (one African-American, two Caucasian, and one Hispanic). The non-competitive certificate included one qualified applicant (Caucasian).
S1 did not refer Complainant to the interview panel for an interview, but referred all the other candidates on the two certificates. In June 2012, after receiving a recommendation from the interview panel, S1 selected the applicant from the non-competitive certificate.
Unemployment Benefits
After her January 2012 removal, Complainant filed a claim with the Illinois Department of Employment Security (IDES) for unemployment benefits. The record reflects that the Agency contracted with a private company (PC) to process claims from former employees.
In February 2012, IDES mailed Complainant a letter of determination finding that she was eligible for benefits because she was not discharged for misconduct connected to her work. In an August 2012 letter, PC requested that IDES investigate a charge to the Agency's account related to Complainant's claim. Specifically, the letter stated that a statement mailed on June 30, 2012 contained a charge related to the claim even though PC's records indicated that IDES had not yet issued a determination on the protested claim. In October 2012, IDES mailed PC a copy of the letter of determination. In late October and early November 2012, email discussions occurred between PC, HR, and the Regional Commissioner (RC) about whether to appeal the letter of determination. In November 2012, PC appealed the letter of determination.
EEO Complaint
On June 24, 2012, Complainant contacted an EEO Counselor. Subsequently, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when: (1) in June 2012, it did not select her for the Supervisory Marketing Communications Project Manager position; and (2) in November 2012, she learned that the Agency had protested and appealed her unemployment benefits.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ granted the Agency's motion and issued a decision without a hearing on January 3, 2014. 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 then filed the instant appeal.
ANALYSIS AND FINDINGS
Standard of Review
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 (EEO MD-110), Ch. 9, � VI.B (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 EEO MD-110, Ch. 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").
AJ's Issuance of a Decision Without a Hearing
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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement and did so by filing her own motion for a decision without a hearing, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Non-Selection - Race and Reprisal
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race and reprisal; we find that the Agency articulated a legitimate, nondiscriminatory reason for not interviewing her. Specifically, S1 averred that she did not refer Complainant to the interview panel because she had been removed for misconduct in January 2012. In addition, S1 averred that HR advised her that she was not required to interview all the applicants on the certificate because the position was non-bargaining unit. Similarly, the Supervisory HR Specialist averred that the Agency's recruitment policy was silent on interviewing rules for non-bargaining unit positions.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. On appeal, Complainant asserted that she would have been interviewed if S1 had not discriminatorily removed her in January 2012. In addition, Complainant argued that she was the only applicant on the two certificates that S1 did not refer to the interview panel. Further, Complainant asserted that the applicant who received the lowest interview score was an African-American employee (C1) who had filed prior EEO complaints against S1. Finally, Complainant asserted that S1 favored Caucasian employees and cited S1's non-competitive promotion of a Caucasian employee into the position in 2007.
Upon review, we find that Complainant failed to prove pretext. Regarding Complainant's January 2012 removal, we note that the Commission in Complainant v. Gen. Serv. Admin., EEOC Petition No. 0320140062 (May 21, 2015) found no discrimination. Regarding Complainant's non-referral for an interview, the record reflects that none of the referred applicants had been previously removed by the Agency - let alone for misconduct less than six months earlier. Moreover, we note that the Agency's "Candidate Selection Guidance for Selecting Officials" did not require S1 to refer Complainant simply because she had referred all the other applicants on the certificate. ROI, at 746. Regarding C1's interview score and the 2007 promotion of a Caucasian employee, we find that Complainant did not establish that race or prior EEO activity played a role in either situation. Moreover, we note that S1 - the decisionmaker with respect to Complainant's non-referral for an interview - was not involved in scoring C1's interview.
Unemployment Benefits - Reprisal
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the basis of reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for protesting and appealing her benefits. Specifically, the Labor and Employee Relations Officer (LERO) averred that PC contacted HR about whether the Agency wanted to appeal the letter of determination mailed by IDES in October 2012. In addition, LERO averred that HR advised RC that there was no written policy governing the matter, but that the general practice was to appeal when the employee was removed for misconduct and not to appeal when the employee was removed for poor performance. Moreover, RC averred that she decided to appeal the letter of determination based on advice from HR to appeal when the employee was removed for misconduct.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. On appeal, Complainant asserted that the Agency's actions were retaliatory because the Agency protested her benefits on June 30, 2012 - only six days after her June 24, 2012 EEO Counselor contact in the instant complaint.
Upon review, we find that Complainant failed to prove pretext. As an initial matter, we find that the June 30, 2012 protest date cited by Complainant is incorrect. PC's August 2012 letter reflects that the June 30, 2012 date referred to the date IDES mailed the statement showing a charge to the Agency's account. ROI at 489. Moreover, even if Complainant raised an initial inference of retaliation by showing that the Agency's protest or appeal occurred shortly after her EEO activity, Complainant still has to prove that the Agency's articulated reason was a pretext to hide the true retaliatory motive. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, � II.E.2 (May 20, 1998). We find that Complainant did not do so here. Specifically, we note that email discussions involving PC, HR, and RC in late October and early November 2012 - the period right before the Agency appealed the benefits - support the Agency's testimony that its general practice was to appeal when the employee was removed for misconduct. ROI, at 568, 572-73, 584-87.
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.
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
__5/28/15________________
Date
1 On March 13, 2014, Complainant filed the notice of appeal along with a supporting statement. Complainant subsequently submitted numerous supporting statements. Any supporting statement must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. See 29 C.F.R. � 1614.403(d). Accordingly, we decline to consider the supporting statements submitted after April 14, 2014, as they were untimely filed.
2 Complainant alleged race and reprisal discrimination in connection with her non-selection but only reprisal discrimination in connection with her unemployment benefits.
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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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