Cynthia Loney, Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 21, 2011
0120103594 (E.E.O.C. Dec. 21, 2011)

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

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0120103594

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120103594