0120131544
05-20-2015
Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120131544
Hearing No. 470-2012-00056X
Agency No. 2009-0051-R11R
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 14, 2013 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Attorney-Advisor, GS-15, at the Agency's Office of General Counsel (OGC) in Cincinnati, Ohio.
In a formal EEO complaint filed on May 28, 2009, Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female) and age (over 40).
In a narrative attachment to her formal complaint, Complainant described her discrimination claim as follows:
Despite being reassigned to the Procurement Law Practice Group (PLPG), I am required to continue to provide legal services ... in all the substantive legal subject matter areas, besides procurement law, covered by attorneys ... However, the other attorneys assigned to the [PLPG] are not required to work in these other substantive legal subject matter areas. Additionally, other attorneys who are assigned to work in the [PLPG] have been allowed to elect to perform work in other legal subject matter areas outside of procurement law if they so desire or to work only in the procurement law area. However, I have been advised that I cannot restrict my work assignments to only procurement law or elect what, if any, other legal subject matter areas I would like to work in. Because I have been unable to focus my work effort in the procurement law areas like my colleagues do, it has affected my performance evaluation(s), opportunities for advancement, and created unnecessary stress.
Complainant cited January 29, 2009, as the date on which the most recent alleged discrimination occurred. However, Complainant asserted that "[e]very day in which I perform duties outside of the substantive legal practice area of procurement law when other similarly situated employees who are in the same practice group are not required to do so constitute[s] a continuing violation."
On June 30, 2009, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim that is pending before or has been decided by the Agency or Commission. On appeal, the Commission reversed the dismissal and remanded the matter to the Agency for further processing. Complainant v. Environmental Protection Agency, EEOC Appeal No. 0120103120 (October 19, 2010).
Following the Commission's decision, the Agency processed the remanded claim in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal. Following an investigation of her claim, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On July 19, 2012, the Agency filed a motion for summary judgment. Complainant submitted a response on August 18, 2012. On September 5, 2012, the AJ issued a decision by summary judgment in favor of the Agency following oral arguments via telephone. On January 7, 2013, the AJ issued an amended decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant, a 55-year old female, began working for the Agency in 1997 as an Attorney Advisor, GS-12, in the Office of General Counsel (OGC) in Cincinnati, Ohio. At the time Complainant was hired, she was regarded as a procurement law expert.
By the time she Complainant filed the instant complaint, she was an Attorney Advisor, GS-15, in OGC's Civil Rights and Finance Law Office
Beginning in 2003, Complainant was the Assistant General Counsel for the Cincinnati Legal Office. In that capacity, Complainant was responsible for providing legal services across a wide of substantive areas. These substantive areas included procurement law and non-procurement law, including personnel management, and Freedom of Information Act matters.
In August 2006, the OGC reorganized its practice. Specifically, the Acting General Counsel (female) realigned several offices within the OGC by combining certain offices and dissolving some. Shortly after the realignment, Complainant's title was changed back to Attorney Advisor, GS-15. The AJ noted that Complainant's reassignment did not affect her grade level or wages. Following the realignment, the Deputy Associate General Counsel (male) began to supervise Complainant and two other male attorneys. Complainant's functions under the supervision of the Deputy Associate General Counsel included procurement law and non-procurement law, including employment law, ethics, information and privacy law, real property law and appropriations law. Complainant continued to perform this range of functions at the time she filed her complaint.
As Complainant began to feel overwhelmed and experienced stress, she sent an email to the Deputy Associate General Counsel requesting that her area of practice be limited to procurement law only. On January 28, 2009, the Deputy Associate General Counsel denied Complainant's request. On March 12, 2009, Complainant initiated EEO contact alleging discriminatory work assignments. Specifically, Complainant alleged that the Deputy Associate General Counsel discriminatorily refused to limit her area of practice solely to procurement law. Complainant identified two male attorneys (ages 45 and 59) as her comparators and claimed they were treated more favorably by being allowed to focus on procurement law.
The record reflects that Comparator 1 (male, age 45) was hired by the Agency in 2004 and had no procurement law experience when he started. Complainant was directed to train him. However, during the relevant period, the evidence showed that Comparator 1 performed various duties ranging from employment and information law to toxics and air projects, even though his official job description after the realignment emphasized procurement law while Complainant's job description was much more varied.
Regarding Comparator 2 (male, age 59), the AJ found that his job description after the realignment reflected a wide variety of duties, more in line with Complainant's description, including Freedom of Information Act and ethics in addition to his regular procurement law assignments. In addition, Comparator 2 was located in North Carolina, while Complainant and Comparator 1 were in Ohio.
The record shows that during the relevant period, Complainant performed 139 procurement law-related assignments, while Comparator 2 handled 308 assignments and Comparator 1 handled 265 assignments.
Based on these facts, the AJ determined that Complainant failed to prove her claim of sex and/or age discrimination. Essentially, the AJ determined that Complainant failed to show that she was subjected to an adverse employment action with regard to her legal assignments, noting these assignments did not affect Complainant's grade or pay. In addition, the AJ found Complainant failed to produce any evidence that her assignments impacted her advancement opportunities or had any other negative effect. The AJ also determined that Comparator 2 was not similarly situated to Complainant as he was located in a different part of the country than Complainant and each of their assignments may have been impacted by the legal needs of those particular geographic areas.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
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.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For example, she argues that her performance evaluations were impacted by the fact that she had less time to work on procurement cases and the male comparators benefitted by working on more of these matters than she did. However, she provides no evidence of this. Instead, the record seems to indicate that Complainant received high ratings during this period. Complainant also argues that before the realignment, she was a "team leader," although she presents no evidence of this fact or its implication.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Here, Agency officials stated that assignments were based on an assessment of needs made during the realignment, and no attorney was allowed to elect which legal areas he/she would work in. Management witnesses stated that all three attorneys had both procurement and non-procurement work, based on the needs of the office. Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask age or sex discrimination. First, we note that both comparators were within Complainant's age range, and Comparator 2, who worked on the most procurement matters, was older than Complainant. Second, beyond Complainant's bare assertions, there simply is no evidence to support a finding that assignments were distributed by gender. Among other things, Comparator 2 worked in a different geographic location than Complainant and that location may have had different legal needs. While Comparator 1 did do more procurement case than Complainant, there is no evidence proffered by Complainant to suggest that his assignments resulted from his gender.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
May 20, 2015
__________________
Date
2
0120131544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131544