0120132098
05-06-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120132098
Hearing No. 480-2011-00178X
Agency No. NRCS-2009-00298
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's April 25, 2013 appeal from the Agency's final action 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
At the time of events giving rise to this complaint, Complainant worked as a Personal Property Specialist, GS-1101-11, at the Agency's Natural Resources Conservation Service, Office of the Deputy Chief for Management, Management Services Division, in Washington, DC. Complainant's First Level Supervisor was the Division Director (S1). Complainant's Second Level Supervisor was the Deputy Chief for Management (S2 - Caucasian, American, White, 57)
During the September 15, 2008 to October 15, 2008 open period, the Agency accepted applications for the position of Management Analyst, GS-0343-12, advertised under vacancy announcement number NRCS-08-CS-281A. The position was in the Management Services Division. Complainant applied for the position. After receiving an application, the Agency sent an acknowledgment letter to the candidate confirming receipt. Report of Investigation (ROI), at 20-21. Specifically, the letter stated the following:
This acknowledges receipt of your application for the above announcement. Your application will be referred to a Human Resources Specialist for review to determine eligibility.
It can take up to 8 weeks from the closing date to complete the recruitment process. When completed, this letter will be resent with the decision(s) on your application shown below.
----------------------------------------------------------------------------------------------------
_____ Position Cancelled _____ Position filled through another process
Determined to be ELIGIBLE and:
_____ ....
_____ ....
Determined to be INELIGIBLE due to:
_____ ....
_____ ....
The record contains two acknowledgment letters: a September 24, 2008 letter addressed to another candidate (C1 - African-American, national origin unknown, Black, approximately 49)1 and an October 14, 2008 letter addressed to Complainant.
An October 20, 2008 merit promotion certificate identified two competitive candidates for consideration - C1 and Complainant - and referred them to S2, the selecting official, for further consideration. Id. at 19. In early November 2008, a Supervisory Management Analyst (P1 - African-American, national origin unknown, Black, 58) and the Management Analyst (P2 - Native-American, American, White, 35) interviewed the candidates. In a November 14, 2008 email, P1 informed S1 that they were recommending C1. Id. at 246-48. The email included two attachments: (1) a ranking of the candidates - showing that C1 ranked first and Complainant ranked second - with a description of their qualifications; and (2) P2's November 12, 2008 email listing the candidates' pros/cons and recommending C1. In a November 14, 2008 email, S1 informed S2 that P1 and P2 had recommended C1 for the position and stated, "Any feedback to help move forward is appreciated." Id. at 243. In a November 24, 2008 email, S2 responded, in pertinent part, with the following:
We lost funding for a couple other positions in the agreements area. In the absence of a good workload analysis, I am uncomfortable filling this position when we may need the staff in a different area, especially due to the issues that have arisen as part of the audit and open obligation review. Id.
On November 25, 2008, the Agency cancelled the position. Id. at 314. In a December 11, 2008 email, the Agency notified Complainant about the cancellation. Id. at 16. Although the merit promotion certificate included a handwritten notation that C1 was selected for the position and Complainant declined the position, the certificate was unsigned. Id. at 19. The acknowledgment letters addressed to C1 and Complainant included a handwritten check mark indicating that the position was cancelled. Id. at 20-21.
On March 3, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Pacific Islander), national origin (Chamorro), color (Brown), age (59), and reprisal for prior protected EEO activity (prior EEO complaints) when, on December 11, 2008, it notified her that the position was cancelled and that she was not selected.
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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 19, 2011, motion for a decision without a hearing and issued a decision without a hearing on March 6, 2013. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
On appeal, Complainant contended that not having a hearing prevented her from establishing the facts, inconsistencies, and credibility of the affidavits on what truly transpired in the instant complaint. Specifically, citing the September 24, 2008 / October 14, 2008 acknowledgement letters and the October 20, 2008 merit promotion certificate, Complainant argued that the Agency was trying to cover up discrimination because those documents - which indicated that the position was cancelled or that C1 was selected - predated her early November 2008 interview and the November 25, 2008 cancellation date mentioned by the Agency. In addition, Complainant argued that management discriminatorily gave C1 the opportunity to enhance her qualifications for the position by previously detailing her to the position. Moreover, Complainant argued that the cancellation of the position was part of a pattern of discriminatory treatment by the Agency that included not selecting her for other positions, denying her details, assigning her duties outside of her position description, and not providing her with a position description. Complainant requested that the Commission vacate the AJ's decision without a hearing and remand the complaint for a hearing.
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A (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").
AJ's Issuance of a Decision Without a Hearing
We must first 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. 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 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 Constr. 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,
441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, national origin, color, age, and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for cancelling the position. Specifically, S2 averred that she decided the position would not be filled due to budget constraints. In addition, S2 averred that there were a number of positions she did not have the funds to fill. Similarly, P1 averred that S2 made the decision to cancel the position due to budget reasons and that the position was still vacant as of September 7, 2010. Moreover, P2 averred that P1 informed him that "the money went away."
Because the Agency articulated a legitimate, nondiscriminatory reason for cancelling the position, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Upon review, we find that Complainant failed to show that the Agency's articulated reason is unworthy of belief. Specifically, we note that a 2008-2010 recruitment status report shows that the Management Services Division did not fill any positions between July 6, 2008 and May 10, 2009. ROI, at 314. This supports S2's testimony that she cancelled the position on or about November 25, 2008 due to budget constraints. In addition, we emphasize that this is not a situation where the Agency cancelled the position after Complainant was the only candidate certified as qualified for the position; instead, the record reflects that Agency officials had recommended C1 for the position and likely C1 would have selected for the position if it had not been cancelled.
As to Complainant's argument regarding the acknowledgment letters and the merit promotion certificate, we find that those documents do not justify an inference that the Agency cancelled the position prior to November 2008 or did so for non-budgetary reasons. It is clear from a close review of those documents that the listed dates (September 24, 2008, October 14, 2008, and October 20, 2008) reflect the dates that the Agency initially issued the documents - i.e., the dates the Agency initially sent the acknowledgment letters to C1/Complainant after receiving their applications during the September 15, 2008 to October 15, 2008 open period and the date the Agency initially identified C1/Complainant as the competitive candidates for consideration on the merit promotion certificate. While the acknowledgment letters have a handwritten check mark next to "Position Cancelled," we emphasize that the letter explicitly stated that the letter would be resent with a decision after the recruitment process was completed. In this case, we find that the acknowledgment letters were resent at a later date with the handwritten check mark next to "Position Cancelled" to reflect the Agency's decision to cancel the position. While the handwritten notations on the merit promotion certificate erroneously indicated that C1 was selected for the position and Complainant declined the position, it is undisputed that the Agency cancelled the position without making a selection.
As to Complainant's argument regarding C1's previous detail to the position, we find that it is not relevant to the instant complaint. The adverse treatment at issue is the Agency's cancellation of the position. The comparative qualifications of the candidates would be relevant if the Agency made a selection, but the Agency cancelled the position without making a selection.
As to Complainant's argument regarding a pattern of discriminatory treatment, we note that the accepted claim in the instant complaint involves only the Agency's cancellation of the Management Analyst position advertised under vacancy announcement number NRCS-08-CS-281A. Moreover, we find that Complainant's bare assertions regarding a pattern of discriminatory treatment is insufficient to show that such discriminatory treatment occurred. We note that Complainant filed other EEO complaints concerning some of the alleged discriminatory treatment and that the Commission found no discrimination. See Complainant v. Dep't of Agriculture, EEOC Appeal No. 0120130072 (Apr. 23, 2014); Complainant v. Dep't of Agriculture, EEOC Appeal No. 0120092591 (Mar. 7, 2011).
Conclusion
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action because the preponderance of the evidence does not establish that race, national origin, color, age, or reprisal discrimination occurred.
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
___5/6/15_______________
Date
1 The record does not indicate C1's date of birth. Complainant stated that C1 is approximately 10 years younger than her.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120132098
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132098