Complainant,v.Eric Fanning, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 16, 2014
0120120419 (E.E.O.C. Apr. 16, 2014)

0120120419

04-16-2014

Complainant, v. Eric Fanning, Acting Secretary, Department of the Air Force, Agency.


Complainant,

v.

Eric Fanning,

Acting Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120120419

Hearing No. 550-2010-00430X

Agency No. 9M0R10005

DECISION

Complainant filed an appeal from the July 12, 2011, decision of an Administrative Judge (AJ), which became the Agency's final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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

At the time of events giving rise to this complaint, Complainant worked as a Staffing Chief of Civilian Personnel. She was employed as a Supervisory Human Resources Specialist at the Agency's Elmendorf Alaska Air Force Base facility in Elmendorf, Alaska.

On March 5, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (Black) when she learned on January 10, 2010, that she had been rated at the "3" level on her Performance Appraisal for the October 1, 2008 to September 30, 2009 rating cycle. 1

The pay system under which Complainant was rated was the National Security Personnel System (NSPS). The final yearly ratings and bonuses (payouts) for employees are determined by a "pay pool." The pay pool was headed by the Transformation and Integration Officer (Caucasian male) (Pay Pool Manager). He was not named in this complaint.

Complainant named two of the seven members of the pay pool as the alleged discriminating officials. One was the Deputy Director for Installation Support ("RMO 1") (Caucasian female) and the other was the Deputy Base Engineer ("RMO2") (Caucasian male). Both were aware of Complainant's race and sex.

The process is that the pay pool reviews the employment record of each employee, along with the self-assessment, and the proposed ratings and comments by each employee's supervisor. The pay pool is required to reach consensus. If a consensus cannot be reached, the Pay Pool Manager makes the ultimate decision. If the pay pool rates an employee differently than that employee's supervisor, the supervisor is given the opportunity to rewrite the justification for their proposed rating. The rewritten rating is then resubmitted to the pay pool for a second round of consideration.

Complainant did not submit a self-assessment. Complainant's direct supervisor ("Supervisor") (Caucasian female) recommended to the pay pool that Complainant receive an overall rating of "4" with a "3" share payout. The pay pool did not agree. The pay pool determined that her rating should be a "3" with a payout of 1 share.

The Supervisor was not satisfied with Complainant's rating as determined by the pay pool and submitted additional support for her recommended overall rating of "4" with three shares of pay out. The pay pool reconvened and reconsidered the Supervisor's rewritten justification, but reached consensus to retain the "3" rating. Using his discretion, however, Complainant's second level supervisor (Caucasian male) raised the payout share for Complainant to 2 shares. Neither Complainant's Supervisor nor her second level supervisor is named by Complainant as responsible for the discrimination.

After receiving her rating, the Complainant requested reconsideration by the pay pool. However, because her request for reconsideration contained allegations of reprisal and discrimination, the Pay Pool Manager averred that the Agency policy required that the matter be addressed as an EEO matter. Therefore, no further consideration was given to Complainant's reconsideration request and Complainant was referred to the EEO office and eventually filed the instant complaint.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the record of investigation. She requested a hearing before an EEOC AJ. The Agency filed a motion for a decision without a hearing. Complainant responded by disputing the Agency's claim that the rating was warranted based on Complainant's demeanor and proffered numerous potential witnesses who could attest her character and work ethic.

Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and, on July 12, 2011, granted summary judgment in favor of the Agency.

First, the AJ found that there were no genuine issues of material fact that required a hearing.

The AJ then found that Complainant established a prima facie case on the bases of race and gender because a similarly situated employee outside of her protected class received a higher performance rating. The AJ found that the Agency articulated a legitimate nondiscriminatory reason for the action at issue. Specifically, the AJ referred to the undisputed supporting evidence that the pay pool concluded on two separate occasions that Complainant's employment record warranted a "3" rating. The AJ found that pay pool members recalled that Complainant was the only employee who did not include a self-assessment for the pay pool to review. The AJ stated that the panel also considered evidence that Complainant had behaved in an unprofessional manner in the workplace on several occasions. The AJ found that the panel's rationale constituted a legitimate nondiscriminatory reason.

The AJ found that there was insufficient evidence to create a genuine issue of material fact to rebut the agency's articulated, non-retaliatory reasons for its actions. "Complainant rebuts the Agency's reasons solely through speculation as to the motivation of the decision makers." However, Complainant conceded to having been involved in unpleasant incidents with RMO1 and RMO2, and admitted that her rating may have been the result of these "personality conflicts." The AJ found that although Complainant acknowledged these less than cordial interactions, she disputes that she was at fault for that incident and offered testimonials from others regarding her professionalism to dispute that specific reason. However, the AJ found that there was no evidence that the two alleged discriminating officials influenced the decisions of the other pay pool members, and specifically noted that those two pay members were absent when the pay pool made its final determination.

The Agency did not issue a final order adopting the AJ's finding. The AJ's decision became the Agency's final decision.

This appeal followed.

ANALYSIS AND FINDINGS

Untimely Appeal

As an initial matter, the Agency argues that Complainant's appeal is untimely given that the AJ's decision became the Agency's final decision, but Complainant did not promptly file an appeal. However, we exercise our discretion and find the appeal timely filed. 29 C.F.R. � 1614.604(c) provides that the time limitations provided for in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. There appears to have been confusion as to whether or not the Agency would file a final order in the matter. Complainant asserts she was waiting for the Agency's final order. When she realized the Agency was not going to issue one, she filed her appeal. As such, we accept the appeal as timely filed.

Disparate Treatment

Our review is de novo. 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.

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).

We find that the record supports the AJ's determination that the evidence in this case was adequately developed and there are no identified disputes of material fact with regard to Complainant's claims.

In this case, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for the disputed decision. Specifically, that the pay panel concluded that a "3" rating was warranted based on its assessment of Complainant's employment record that had been presented to them, her own failure to submit a self-assessment, and several incidents of unprofessional conduct. Agency witnesses noted that a rating above a "3" required an indication that the employee was markedly exceeding expectations for his or her position. Pay pool witnesses noted that there was no information in Complainant's employment record presented to them of such an achievement (such as receipt of awards).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Complainant did not meet this burden of proof. On appeal, Complainant argues that the Agency's justification is without sufficient support. She asserts that she was the victim of "a direct offense against [Complainant's] character, when she received an overall rating of 3 out of a possible 5" on her rating. However, the record supports the AJ's finding that the pay pool members based their decision on Complainant's lack of a self-assessment and evidence that Complainant behaved in an unprofessional manner on a couple of occasions in the workplace. Complainant, herself, admitted that she was involved in an unprofessional interaction at one time with RMO1. Complainant's supervisor confirmed during the investigation that she had also received some negative feedback from customers regarding Complainant's attitude and tone, and had counseled her about how she comes across.

Accordingly, we AFFIRM the AJ 's decision which became the Agency's final action.

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 (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

April 16, 2014

__________________

Date

1 Complainant also raised a claim of retaliation. The Agency dismissed the claim. Complainant did not raise the dismissal with the AJ or on appeal. Thus, we will not address it herein. We also note that the Agency in this case used an outdated DD Form 2655 (Complaint of Discrimination), which did not allow those completing the form to identify retaliation as a basis in Section 8. The Agency is advised that it should update its complaint form to retaliation on its list of possible bases.

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0120120419

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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