0120140776
02-13-2015
Complainant v. Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Complainant
v.
Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120140776
Hearing No. 510-2013-00135X
Agency No. 54-2012-01871
DECISION
On December 27, 2013, Complainant filed an appeal from the Agency's December 5, 2013, final decision 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. 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 decision.
ISSUES PRESENTED
The issues presented before the Commission are (1) whether an EEOC Administrative Judge's (AJ) decision to dismiss Complainant's hearing request as a sanction for failure to comply with an AJ order amounts to an abuse of discretion; and (2) whether Complainant proved discrimination by preponderant evidence when she was not given a career-ladder promotion.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator (Special Agent), ZA-1811-III at the Agency's Southeast Enforcement Division, Office of Law Enforcement, National Marine Fisheries Service located in Saint Petersburg, Florida. On June 18, 2012, she filed an EEO complaint alleging discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was denied a career ladder promotion from the ZA-III level to the ZA-IV level.
The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ, or alternatively, a final decision from the Agency on the record. Complainant timely requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
The AJ assigned to the case ultimately dismissed Complainant's hearing request on the grounds that Complainant failed to comply with the AJ's order to inform the Agency of her settlement demands within a certain time period. In light of the AJ's determination, Complainant's case was remanded to the Agency for the issuance of a final decision on the merits pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency concluded that Complainant failed to prove discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, in relevant part, that the AJ abused her discretion when she dismissed Complainant's hearing request for failure to comply with an AJ's order. Those contentions are addressed below. The Agency's contentions merely restate its case-in-chief; therefore, we will not repeat them here. Instead, we inherently address them in the analysis and findings section, below.
STANDARD OF REVIEW
As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
1. Complainant's Contentions on Appeal
We first address Complainant's contentions on appeal, namely, whether the AJ abused her discretion when she dismissed Complainant's hearing as a sanction for failure to follow an AJ order. The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. � 1614.109 et seq.; EEO MD-110, Chap. 7, � III(D). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treas., EEOC Appeal No. 07A00015 (July 17, 2001).
More specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110, Chap. 7, � III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).
In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, EEOC Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
The Commission has emphasized that the purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U. S. Postal Serv., EEOC Appeal No. 07A30133 (Jun. 16, 2005). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005).
In this case, the AJ sanctioned Complainant by dismissing the underlying hearing request when Complainant failed to comply, in relevant part, with the AJ's May 3, 2013, order to "provide . . . the Agency [r]epresentative any and all proprosals/demands for settlement with accompanying receipts, if any, so that the Agency representative(s) receives it . . . no later than July 9, 2013." See September 25, 2013 Administrative Judge Decision at 2. We note that the AJ's order stated that failure to comply may result, in relevant part, in "the preclusion of having a hearing." Id.
Complainant argues that the AJ should not have dismissed her hearing request as a sanction because she did apprise the Agency of her settlement demands. To support this argument, Complainant provides a signed statement in which she attests that she provided the required information to the Agency's representative, and her attorney's telephone records which appear to show that her attorney was in contact with the Agency during the relevant time period. The Commission is not persuaded by either document, as Complainant's signed statement amounts to nothing more than bare assertions without supporting evidence; her attorney's telephone records do not reveal what was discussed during those telephonic contacts.
Even so, a fair reading of the AJ's order demonstrates that Complainant was ordered to provide her settlement proposals/demands to the Agency's representative in writing. Yet, Complainant was not able to produce and the record does not contain any such written proposals/demands. In her dismissal, the AJ noted that "[a]t the Pre-Hearing Conference[,] Complainant acknowledged that since the issuance of the [AJ's order,] she had not submitted a settlement proposal or demand to the Agency." Id. at 3. These facts coupled with the broad authority the Commission grants to its AJs as to how hearings are conducted require a finding that the AJ did not abuse her discretion when she dismissed Complainant's hearing request for failure to follow an AJ order.
2. Sex and Reprisal Discrimination
We now turn our attention to whether Complainant has proven discrimination based on sex and reprisal when she was not given a career ladder promotion. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume, for purposes of analysis only, that Complainant has established prima facie cases of discrimination with respect to her sex and prior EEO activity.
The Agency must now articulate a legitimate, nondiscriminatory reason for not promoting Complainant from the ZA-III (Band III) level to the ZA-IV (Band IV) level. Burdine at 253. The Agency stated that Complainant was not promoted because, in order to be promoted to the ZA-IV level, the person seeking promotion had to satisfy a minimum of five of seven proficiencies, and Complainant satisfied only three. The Agency further noted that Complainant's promotion package contained investigative examples indicative of what is expected of a ZA-III employee, and therefore would not be support for promotion to ZA-IV. The Agency further stated that Complainant's investigations lacked significant complex cases that illustrate a ZA-IV type investigation from commencement through conclusion.
More specifically, Complainant's first-line supervisor, a member of the recommending promotion panel, stated that Complainant limited herself to undertake joint investigations that were entirely civil and non-complex in nature. Complainant's second-line supervisor, also a member of the recommending promotion panel, stated that Complainant did not demonstrate high-level investigations nor did she demonstrate advanced law enforcement skills and investigation techniques. Another member of the recommending panel stated that Complainant's work tended to be off-shoots of patrol work initially conducted by state or U.S. Coast Guard officials and did not reach the level of criminal intensity demonstrated by the Criminal Investigators who were recommended for promotion. The remaining members of the panel offered similar statements. We find that the Agency's stated reasons for not promoting Complainant from the Band III to the Band IV level to be legitimate and nondiscriminatory. In so doing, we note that the recommending promotion panel also did not recommend male employees for promotion.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretexts for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus because of her sex or for engaging in prior EEO activity.
In order to prove that the Agency's stated reasons were pretexts for discrimination, Complainant pointed to her longevity as a Criminal Investigator, her Master of Science degree in Digital Forensics, and testimony from some of her co-workers. However, she failed to show that longevity and education were required and/or relevant factors in order to be forwarded for promotion. Further Complainant failed to show that her co-workers possessed knowledge about the quality and complexity of her investigation that was superior to the knowledge possessed by those actually tasked with supervising, judging, and assessing her work product. Without more, we find that Complainant's has failed to meet her burden to show that the reasons proffered by the Agency were pretexts for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ did not abuse her discretion when she dismissed Complainant's hearing request. We further find that Complainant failed to prove discrimination as alleged. The Agency's final decision is hereby 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
February 13, 2015
Date
2
0120140776
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140776