0120103594
12-21-2011
Cynthia Loney, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Cynthia Loney,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120103594
Hearing No. 543-2009-00023X
Agency No. OS-09-0053
DECISION
On September 7, 2010, Complainant filed an appeal from the Agency’s
August 5, 2010, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Records Management Specialist in the Office of the Special Trustee
for American Indians at the Agency’s work facility in Albuquerque,
New Mexico.
On February 10, 2009, Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her on the bases of her sex
(female) and national origin (Navajo) when:
1. Complainant was denied a career ladder promotion to the GS-11 level
in 2008 and 2009.
2. Complainant was subjected to harassment.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s Motion for a Decision Without
a Hearing and issued a decision without a hearing on July 27, 2010.
The AJ found that no discrimination occurred. AJ’s Decision at 14.
The AJ observed that the Agency stated that it denied Complainant
a promotion to the GS-11 level based on her job performance and the
differences between a GS-9 and a GS-11 position. Id. at 8. According to
the Agency, Complainant required too much supervision to qualify her for
the GS-11 position. Id. at 9. The AJ found that Complainant failed to
establish that she was treated less favorably than a similarly situated
individual outside her protected groups. Id. at 10. The AJ noted that
the Supervisor promoted individuals who received “Superior” ratings
on their performance appraisals regardless of sex or national origin,
and that Complainant received a rating of “Fully Successful”. Id.
The AJ stated that there is no evidence that a person with a “Fully
Successful” rating received a promotion from the Supervisor. Id. As to
the comparisons cited by Complainant, the AJ noted that one comparison
is not viable since she does not have the same Supervisor and she is
also a Navajo female. Id. With respect to the male comparison, the AJ
found that he is not a similarly situated employee since he received a
rating of “Superior” on his performance appraisal for both of his
career ladder promotions. Id.
As to the claim of harassment, the AJ found that there was insufficient
evidence of harassment on either of the alleged bases. Id. at 12. The AJ
stated that Complainant claimed that her Supervisor would treat employees
in a way that was not very tactful, including pointing and yelling. Id.
With respect to the alleged harassment by the male coworker, Complainant
contended that he also yelled and pointed at her and that the way he
talked to her lacked tact. Id. The AJ found that the alleged conduct
was not sufficiently severe or pervasive to constitute a hostile work
environment. Id. at 13.
The Agency subsequently issued a final order implementing the AJ’s
finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.
On appeal, Complainant contends that since she was rated “Fully
Successful” on her performance appraisals for fiscal years 2007 and
2008, she should have been promoted to the GS-11 level. Complainant
states that male employees who were similarly situated to her received
“Superior” ratings thereby enabling them to receive promotions to
higher grades. Complainant challenges the Agency’s explanation for not
promoting her as she maintains that the Agency has not provided specific
information regarding her alleged deficiencies. Complainant argues that
the Agency relied solely on the subjective assessment of her supervisor
that she needed too much supervision to qualify for a promotion to
the GS-11 level. With regard to her claim of harassment, Complainant
maintains that constantly being yelled and pointed at altered her work
environment. Complainant contends that her supervisor was motivated to
discriminate against her due to her being of a different national origin.
According to Complainant, both her supervisor and a male coworker
constantly bullied her. Complainant states that the supervisor did
nothing to curtail his behavior toward her. Complainant reasons that
the coworker’s behavior toward her was due to her being female since
he did not bully male employees.
In response, the Agency asserts that Complainant’s performance
evaluations documented her inability to work with less supervision and
less detailed instructions. The Agency maintains that since a GS-9
employee is not required to perform at the GS-11 performance level, an
employee may be considered to be fully successful in the GS-9 position,
but not qualified for the GS-11 position. Thus, the Agency argues that a
rating of “Fully Successful” as a GS-9 is not sufficient to warrant a
promotion to the GS-11 level. The Agency asserts that Complainant failed
to cite any evidence that challenges the validity of the information
in the performance appraisals. The Agency notes that the Supervisor
promoted every other female employee and every other Navajo employee
under her supervision when the opportunity arose.
With respect to the claim of harassment, the Agency states that
Complainant failed to establish a prima facie case because there is
insufficient evidence that any of the alleged harassment was linked to
her sex or tribal affiliation. Further, the Agency asserts that the
actions of the Supervisor and the coworker did not create a hostile
work environment.
ANALYSIS AND FINDINGS
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 administrative judge
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 administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
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). 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 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, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
To establish a claim of harassment, a Complainant must show that: (1)
he or she belongs to a statutorily protected class; (2) he or she was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on the Complainant’s statutorily protected class; and
(4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to
the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905
(11th Cir. 1982). Further, the incidents must have been "sufficiently
severe and pervasive to alter the conditions of complainant's employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
We find that the AJ’s granting of summary judgment for the Agency
was proper. With regard to the claim concerning Complainant being
denied a promotion from a GS-9 to a GS-11, we shall assume, arguendo,
that Complainant set forth a prima facie case of national origin and
sex discrimination. The Agency stated that it based its decision not to
upgrade Complainant on her job performance and the differences between a
GS-9 position and a GS-11 position. According to the Agency, Complainant
required too much supervision to qualify for the GS-11 position.
The Supervisor explained that Complainant was not detail oriented
and Complainant did not check her work for grammatical errors or other
mistakes. The Agency further stated that a performance rating of “Fully
Successful” is not sufficient to warrant a promotion to the GS-11 level.
We find that the Agency articulated legitimate, nondiscriminatory reasons
for its decision not to promote Complainant to the GS-11 level.
With regard to the arguments presented by Complainant, we observe that
Complainant has not offered persuasive argument or evidence that her job
performance warranted a promotion. Complainant has not shown that her
job performance was at the same level as those individuals who received a
“Superior” rating and a career ladder promotion to the GS-11 level.
The record reflects that Complainant required a significant degree
of supervision as she had performance deficiencies. Complainant has
not refuted the position of her Supervisor that she needed to work on
concentrating on her assignments, concentrate on what she was entering
into the database, and that she needed to understand who the employees
were and under what entity they fell. According to the Supervisor,
she assigned various program and team leads to work with Complainant,
but they came back frustrated afterwards because she would need more
instruction. We find that Complainant has failed to establish that the
Agency’s stated reasons for the denial of her promotion were pretext
intended to mask discriminatory intent.
As to the harassment claim, we find that the incidents at issue are
not of sufficient severity or pervasiveness to constitute harassment.
Complainant claimed that the Supervisor and a male coworker frequently
yelled and pointed at her. However, the record indicates that Complainant
frequently committed mistakes and that her Supervisor often had to review
assignments with her more than once. The male coworker stated that he
worked with Complainant in explaining the database that was used in data
entry and different ways on how to obtain information from the database,
but that Complainant had a difficult time understanding the system.
Complainant has not shown that the treatment she received from the
Supervisor and male coworker constituted a hostile work environment.
Moreover, Complainant has not demonstrated that the treatment directed at
her was attributable to her sex or national origin. The Supervisor’s
management style toward Complainant was similar to her approach toward
other employees. A former Records Management Specialist directly under
the supervision of the Supervisor stated that the Supervisor was impatient
in her interactions with Complainant as she was with other employees.
CONCLUSION
The Agency’s determination in its final order that no discrimination
occurred 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
December 21, 2011
__________________
Date
2
0120103594
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120103594