Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 17, 2015

01-2012-3537-0500 (E.E.O.C. Jul. 17, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120123537

Hearing Nos. 420-2012-00110X and 420-2012-00104X

Agency Nos. 8I1M11014 and 8I1M11005

DECISION
Complainant filed an appeal from the Agency’s August 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Diagnostic
Radiologist Technician at the Agency’s Eglin Air Force Base facility in Florida. On May 24,
2011, Complainant filed an EEO complaint alleging the Agency discriminated against her on
the bases of race (African American) and sex (female) when:

1. On January 12, 2011, a coworker, E1, made a threatening gesture towards
Complainant in the presence of a supervisor.

2. On January 31, 2011, Complainant received negative feedback from her
supervisor, S1, who stated that Complainant’s interpersonal skills with E1 were having a
negative impact on the working environment.

3. On February 7, 2011, Complainant was relocated from one work space to one
that was isolated from the other co-workers without her knowledge.

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On July 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when:

4. All appraisal factors for Complainant’s annual appraisal for April 1, 2010
through March 31, 2011, were downgraded with no previous feedback or documentation of
Complainant’s decreased performance.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing.
Complainant and the Agency jointly requested that Complainant’s complaints be consolidated
for hearing and on March 14, 2012, the AJ granted the parties’ motion to consolidate
Complainant’s complaints. In her initial witness list submitted to the AJ, dated April 25,
2012, Complainant withdrew claim (3), pertaining to the relocation of her office. In her
response to the Agency’s motion for a decision without a hearing, dated July 2, 2012,
Complainant withdrew claims (1) (threatened by E1) and (2) (received negative feedback from
S1).

Claim (4) (appraisal rating) alone remained at issue for adjudication by the AJ. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s June 15, 2012
motion for a decision without a hearing and issued a decision regarding claim (4)
(Complainant’s appraisal rating), without a hearing on July 20, 2012.

In his Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ
found that Complainant failed to establish a prima facie case of reprisal discrimination. The
AJ found that on August 31, 2010, Complainant’s supervisor, S1, conducted a midterm
performance review with Complainant in which S1 noted that Complainant’s work did not need
improvement, but that S1 desired for Complainant to continue to work toward improving the
working relationship between mammography (where Complainant worked) and the ultrasound
services section. When asked, S1 provided Complainant with a memorandum for record, the
AJ found, that clarified Complainant could not use the title “Chief” or “Lead” of
mammography, though she was the most experienced technician in the section. Complainant,
the AJ noted, disagreed with S1 regarding her responsibility for the relationship with the
ultrasound department. The AJ found that S1 noted Complainant’s performance at that time
was in the 83% - 92% range.

The AJ found that on January 28, 2011, S1 again provided Complainant with midterm
performance feedback and again, S1 noted that Complainant was performing in the 83% to
92% range and that he advised Complainant that a team approach would be necessary for the
mammography section to succeed. The AJ found that Complainant refused to assume
responsibility for oversight of the Food and Drug Administration (FDA) quality assurance
program (FDA QA), despite being informed by her new supervisor, S2, that Complainant’s
duties included maintaining oversight of the program.
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The AJ found that supported by the feedback Complainant received throughout the rating year
from her supervisors, Complainant received numerical performance ratings between 5 and 8 in
each element of her performance standards. Those scores, the AJ noted, provided
Complainant with a “fully successful” overall performance rating. The AJ found that
Complainant was not aggrieved by this performance rating and that Complainant had,
accordingly, not established a prima facie case of reprisal discrimination. Complainant had not
shown, the AJ found, that she was subjected to an adverse employment action in retaliation for
her prior protected EEO activity. The AJ found that Complainant’s appraisal rating was
consistent with the ratings she had received in prior years. The AJ concluded that the material
facts were undisputed, and that drawing every reasonable inference in Complainant’s favor,
Complainant did not show that she was subjected to any adverse employment action and did
not show that she was subjected to reprisal 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.

On appeal, Complainant states that material facts remain in dispute and that the Agency did not
make S1 available for discovery, thus denying Complainant the opportunity to call S1 as a
witness whose testimony regarding her rating is essential to the Agency’s legitimate,
nondiscriminatory reasons for its actions. In the absence of S1’s testimony, Complainant states
she is denied a fair hearing of her complaint.

ANALYSIS AND FINDINGS
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
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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).
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). He must generally establish a prima facie case by demonstrating that he
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). 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the AJ properly issued his Decision without a hearing and we find
that the material facts are not in dispute. While S1 was not available for the investigation, we
find that the record includes the actual appraisal which provides sufficient legitimate,
nondiscriminatory reasons for the appraisal. Therefore, we find the investigation was
adequate. We note that in his memorandum in support of the performance appraisal rating for
the year ending March 31, 2011, S1 cites Complainant’s interaction with coworker E1 that
resulted in S1 adding a comment to Complainant’s 971 file regarding interpersonal relations
with E1 in the workplace. We find no dispute that Complainant engaged with E1 in an
exchange that S1 believed demonstrated a negative interaction between Complainant and her
coworker. We further find no dispute that Complainant did not agree that she should be
responsible for the oversight of FDA QA program, and that S1 cited this disagreement as a
reason that Complainant’s performance rating fell in the 83% to 92% range, and not any
higher. We further note no dispute in the evidence that S1 and Complainant disagreed about
Complainant’s role in the relationship between the mammography section and the ultrasound
department. We find that the undisputed evidence corroborates the reasons articulated by S1
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for his rating of Complainant’s performance for the identified performance year at the “fully
successful” level.

We decline to disturb the AJ’s Decision without a hearing finding no discrimination. We find
that drawing every reasonable inference in Complainant’s favor, Complainant did not present
evidence that S1’s reasons for assigning her rating were a pretext for discrimination and that
Complainant’s prior EEO activity was the real reason for the Agency’s actions.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order, finding no
discrimination.

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).
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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

Date
July 17, 2015