Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Jul 16, 2015

01-2013-2374-0500 (E.E.O.C. Jul. 16, 2015)

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

,
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.

Appeal No. 0120132374

Hearing No. 570-2011-00786X

Agency No. ATF201000185

DECISION
On June 12, 2013, Complainant filed an appeal from the Agency’s May 3, 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

. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). 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 National Firearms
Act Specialist at the Agency’s National Firearms Act Branch Licensing Center in Martinsburg,
West Virginia. On March 22, 2010, Complainant filed an EEO complaint alleging that the
Agency subjected her to a hostile work environment on the bases of her race (African-
American), sex (female), age (61), and in reprisal for prior protected EEO activity when: (1)
on September 1, 2009, management denied her courtroom testimony training; and (2) on
October 28, 2008, management did not provide her with a list of delinquent letters the acting
branch chief noted in her performance appraisal.

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 timely requested a hearing.
On March 26, 2013, over Complainant’s objections, the AJ assigned to the case granted the
0120132374

2
Agency’s motion for a decision without a hearing. 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.

ANALYSIS AND FINDINGS
As an initial matter, we note that, as this is an appeal from a final decision issued without a
hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). 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 102, 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,
it is not appropriate for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without a hearing only upon a
determination that the record has been adequately developed for summary disposition. Petty v.
Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate
treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish 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 Construction 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,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc

., 530 U.S. 133 (2000).
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Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a
prima facie case of race, sex, age, and reprisal discrimination, the Agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim (1),
Complainant alleges that, on September 1, 2009, management denied her request for
courtroom testimony training. Complainant later clarified her claim by saying that she never
requested the training but would have asked to attend had she known about it. Specifically,
Complainant alleges the Agency acted in a discriminatory manner when they allowed a co-
worker (CW1) to attend the training, even though this individual had already attended this
training and was experienced in testifying in Federal court. Complainant’s supervisor (S1)
stated that an Agency official sent an email requesting that a GS-14 and two other individuals,
who testify on a routine basis, attend the class. S1 stated that the Branch policy at the time was
that only GS-13’s and above testified in court and since the instructions asked for individuals
who would be or were routinely testifying, he only submitted individuals who were GS-13’s.
The record shows that Complainant is a GS-11, and does not testify in court as part of her job
duties. We find that Complainant failed to show that the Agency’s reasons for not sending her
to the training at issue were a pretext for unlawful discrimination.

With respect to claim (2), the record shows that one of Complainant’s job duties is to respond
to incoming letters and update the National Firearms and Registration and Transfer Record. In
her performance appraisal for the period October 2007 through September 2008, the acting
branch chief (S2) rated Complainant as “exceeds fully successful” and made reference to a
number of delinquent letters assigned to Complainant. When Complainant was issued her
performance appraisal, she requested a list of the referenced delinquent letters. Although S2
failed to provide Complainant with the information she requested, Complainant acknowledges
that in March 2009, S1 sent out a list of all the delinquent letters to all the specialists. Here,
we concur with the AJ’s finding that Complainant failed to show that she was harmed by any
delay in her receipt of the requested list, or that the Agency’s actions were motivated by
discriminatory or retaliatory animus.

Finally, we find that even viewing the evidence in a light most favorable to Complainant, she
has not established that these two events, taken individually or collectively, constitute unlawful
harassment. In so finding, the Commission notes that since she failed to refute the legitimate,
nondiscriminatory reasons proffered by the Agency for its actions, she necessarily also failed
to establish that such actions were taken on the basis of her membership in the protected
classes. Accordingly, Complainant failed to establish that she was subjected to a discriminatory
hostile work environment. See Bennett v. Department of the Navy

, EEOC Request No.
05980746 (September 19, 2000).

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.
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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.

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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 16, 2015