Edmund J. Wiatr, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionOct 29, 2010
0120080001 (E.E.O.C. Oct. 29, 2010)

0120080001

10-29-2010

Edmund J. Wiatr, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Edmund J. Wiatr,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 0120080001

Hearing No. 160-2005-00669X

Agency Nos. DFASINR002034, DFASINAS04047,

DFINAS05027, DFASINAS05064,

DFASINAS06004

DECISION

On September 24, 2007, Complainant filed an appeal from the Agency's August 23, 2007 final order concerning his 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 appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the Agency's final order is AFFIRMED.

ISSUES PRESENTED

Whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) Whether Complainant established that he was discriminated against with respect to claims (1), (10), (11) and (12).

BACKGROUND

Complainant, a Senior Systems Accountant at the Agency's Defense Finance Accounting Service facility in Rome, NY, claimed that the Agency discriminated against him on the bases of sex (male), age (over 53), national origin (Polish) and reprisal for prior protected EEO activity when:

1. he received a "Fully Successful" performance appraisal on May 28, 2002, which was lower than his previous "Highly Successful" rating; 1

2. his performance appraisals for the years of 2000 and 2001 were reduced;

3. he was denied supervisory control when the Chief of Systems was absent on July 2, 2002;

4. he received a letter of reprimand on January 29, 2004, because of an incident with a coworker;

5. he was denied the opportunity to review customer complaints prior to January 29, 2004;

6. he had not been designated as acting supervisor in Systems Division;

7. he had been denied professional development training through January 2004;

8. he was denied an opportunity to attend the DFAS-IN SAT ODS testing on February 25, 2004;

9. he had been assigned an unreasonably short suspense on the Customer Index Tasker Project;

10. on or about October 1, 2004, he was not selected for a GS-510-13, Supervisory Accountant position;2

11. on April 15, 2005, he was denied attendance to the Defense Resources Management Course (DRMC) and the Professional Resources Management Course (PRMC);and

12. on September 12, 2005, he was denied attendance to the DRMC, and the PRMC, and the Advanced Management Program (AMP).

Following the investigation of his formal complaints, Complainant requested a hearing before an AJ. On April 19, 2006, the Agency filed a motion for a decision without a hearing on all the issues contained in Agency Case Nos. 02-034, 04-047, and 05-027.3 On July 10, 2007, the AJ issued a Notice of Intent indicating that a decision without a hearing would be issued on all the claims, including Agency Case Nos. 05-064 and 06-004.4 The parties were given fifteen (15) days to respond. Including a five (5) presumption of receipt, Complainant's response was due on or before July 30, 2007. Complainant filed a statement in opposition dated August 10, 2007. On August 16, 2007, the AJ issued a decision by summary judgment in favor of the Agency. The AJ's decision did not reference Complainant's statement in opposition.

With respect to claim (1), the record indicates that, in 1998 and 1999, Complainant's supervisor rated his performance as "Exceptional." In 2000 and 2001, he was rated as "Highly Successful," which was followed by his 2002 rating of "Fully Successful." Besides Complainant, two female employees, C-1 (41 at the time, no prior EEO activity) and C-2 (42 at the time, prior EEO activity), also had lower appraisals in 2002 than 2001. C-1 went from "Excellent" to "Highly Successful," while C-2 went from "Highly Successful to Fully Successful." There were five other similarly situated employees (three male, two females) whose ratings did not change from 2001 to 2002. Two of them were over age 40, while three were under, and none had prior EEO activity. Complainant did not provide a statement during the investigation regarding claim (1).

In his August 16, 2007 decision, as to claim (1), the AJ noted the statement of Complainant's supervisor that Complainant received a "Fully Successful" rating instead of his previous "Highly Successful" rating because in her opinion Complainant did not utilize the systems available to him to enhance his technical skills, nor did he go above and beyond to be rated at the "Highly Successful" level. Further, as to claim (1), the AJ determined that other employees, outside of Complainant's protected class, also received lower performance ratings than they had previously.

The AJ dismissed claims (2) and (3), pursuant to 29 C.F.R. � 1614.107(a)(1), because they stated the same claim that had already been adjudicated in EEOC No.160-99-8644X.5 As for claims (4) through (8), the AJ dismissed these matters, pursuant to 29 C.F.R. � 1614.107(a)(3), on the grounds that Complainant had already filed a civil action in the U.S. District Court regarding these same claims.6 As for claim (9), the AJ determined that there was no evidence that Complainant had been assigned unreasonably short periods on the Customer Index Tasker Project.

With respect to claim (10), the record indicates that Complainant applied for the position of Supervisory Accountant, GS-510-13, located in Rome, New York. The referral list included 13 candidates including Complainant. A selection panel of three people, A-1 (male, 62, no knowledge of Complainant's EEO activity), A-2 (female, 53, no knowledge of Complainant's EEO activity) and A-3 (female, 46, no knowledge of Complainant's EEO activity), evaluated the candidates on the referral list. The three panel members all indicated that they were not aware of the ages of the candidates. They rated the candidates on experience, education, certification and performance ratings. When the points were total, the panel selected the top six candidates, according to their ratings, to interview. Complainant was not one of the top six and therefore was not interviewed.

Afterward, the panel recommended three candidates for consideration by the Selecting Official (SO)(male, 62). These candidates were C-3 (male, three years older than Complainant), C-4 (male, almost two and a half years younger than Complainant) and C-5 (male, more that 12 years younger than Complainant). C-5 was eventually selected for the position. The SO was aware of Complainant's prior EEO activity.

The AJ found that Complainant was not chosen for the Supervisory Accountant position because he received a low rating and ranking by the selection panel of accountants that rated applicants for the position. Moreover, the AJ found that Complainant's qualifications were not so superior to the individual selected that it showed pretext.

As to claims (11) and (12), the AJ determined that the Agency articulated legitimate nondiscriminatory reasons for its actions. In particular, the record indicated that Complainant was not eligible for the PRMC on April 15, 2005, because he had previously attended a similar course. Furthermore, the AJ found that the reason Complainant was not selected for attendance to PRMC and DRMC on September 15, 2005, was because his application received a lower rating, a 67, than other applicants. In regards to not being allowed to attend the AMP, the record indicated that Complainant was not eligible for attendance, because he was only a GS-12 and the course was only available for applicants at the GS-13 level or higher.

On August 23, 2007, the Agency issued its final order implementing the AJ's decision.

CONTENTIONS ON APPEAL

On appeal, Complainant alleged, in pertinent part, that he never received acknowledgment orders pertaining to Agency Case Nos. 05-27 (claim (10)), 05-064 (claim (11)) and 06-004 (claim (12)) and therefore he was not given the opportunity to engage in discovery. He also argued that the AJ erred in not finding discrimination regarding claim (1). 7

ANALYSIS AND FINDINGS

At the outset, we note Complainant's contention on appeal that he never received acknowledgement orders pertaining to Agency Case Nos. 05-027, 05-064 and 06-004; and, therefore, he was denied the opportunity to engage in discovery. Although there seems to be no dispute that acknowledgement orders were not issued for these complaints, we find that Complainant appears to have raised this argument in an untimely manner. We note in this regard that although he was given until July 30, 2007 to file an opposition to the AJ's Notice of Intent to issue a decision without a hearing, Complainant's opposition was dated August 10, 2007, which was only six days before the AJ issued his decision. Since the AJ's decision does not address Complainant's opposition, we find it reasonable to conclude that, because it was untimely, it was never considered by the AJ. Therefore, without an adequate justification provided by Complainant for filing his opposition in an untimely manner, we will not address the arguments contained therein or raised, essentially for the first time, on appeal regarding the acknowledgement orders. These matters should have been presented to the AJ in a timely manner.

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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). 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 id. at Chapter 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").

We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing. The Commission's regulations allow an AJ to issue a decision without a hearing when 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding a hearing unless 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). After a careful review of the record, the Commission finds that the AJ properly issued a decision without a hearing because Complainant failed to show that a genuine issue of material fact exists or that there were any credibility determinations such that a hearing on the merits is warranted.

Claim (1)

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 he 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, nondiscriminatory 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).

In order to establish a prima facie case of discrimination based on sex and age Complainant may show: (1) that he is a member of a protected group; (2) that he was subjected to an adverse employment action; and (3) that he was treated less favorably than other similarly situated employees outside of his protected groups. We note that it is not necessary for Complainant to rely strictly on comparative evidence in order to establish an inference of discriminatory motivation necessary to support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).

Upon review, we find that Complainant failed to establish a prima facie case of discrimination based on sex or age. In reaching this conclusion, we note that the record does not establish that Complainant was treated less favorably than similarly situated employees outside of his protected groups, nor is there any other evidence that would establish an inference of sex or age discrimination. As the record indicates, C-1 and C-2 both were outside of Complainant's protected classes, i.e., female and younger, and received lower performance ratings than they had the previous year.

Complainant can establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Complainant can also establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802).

We do find that Complainant established a prima facie case of reprisal discrimination. The record indicates that Complainant, between 1998 and 2002, engaged in protected EEO activity on numerous occasions including filing several EEO complaints against management. Agency officials, including his supervisor, were aware of his EEO activity. In May 2002, he received a performance appraisal which was lower than his previous rating. Given that his EEO activity was on-going at the time he received his performance appraisal, we find that there was a nexus between his EEO activity and his lowered performance rating.

We also find that the Agency provided a legitimate, nondiscriminatory reason for its actions. According to his supervisor, Complainant received a "Fully Successful" rating because it reflected his work performance during the period. ROI, VOL I, pp 17 - 19. She noted that although she provided Complainant with the opportunity to provide feedback to her about his rating and that she would have taken his input into consideration, Complainant did not provide her with any specific feedback. He merely maintained that he should have been rated "Exceptional." Id. at 17. We find that Complainant failed to provide any persuasive evidence of pretext, or that his prior EEO activity played a role here.

On appeal, Complainant maintained that his supervisor, in a "verbatim" statement to an EEO Counselor, admitted that he was given a "Fully Successful" rating because of his previous EEO activity. According to Complainant, the AJ's failure to find reprisal discrimination "defies logic." We note, however, that the document referenced by Complainant was not a verbatim statement, but a summary of a telephone interview given by his supervisor. We also find that, given the context of the entire sentence, the word "not" was obviously left out of the supervisor's summarized statement.8 Thus, although Complainant argues that there is, essentially, direct evidence of discrimination based on reprisal, we find that when drawing all justifiable inferences in his favor that no such evidence exists.

Claim (10)

At the outset, we find that Complainant has not established a prima facie claim of sex or reprisal discrimination. In this regard, we note that C-3, C-4 and C-5 were all males. Likewise, the record indicates that A-1, A-2 and A-3 had no knowledge of Complainant's EEO activity when they decided that he was not a top candidate for the position. Although we find no evidence that the panel members were aware of the ages of the candidates, we do find that Complainant established a prima facie case of age discrimination given the discrepancy between his age and C-5's age of 42.

The Agency provided legitimate, non-discriminatory reasons for selecting C-5 and not Complainant. According to the SO, he relied upon the recommendations of the panel. He did not consider Complainant for the position, because he was not one of the candidates recommended by the panel. Prior to making his selection, the SO stated that he did not know C-5.

A-1, the Chairman of the panel, testified that Complainant was given 22 points for experience. This included supervision; operational experience; and experience with field level systems. He received 0 points for direct involvement in developing accounting policy/procedures, because he did not indicate that he had ever performed policy or procedure development at the network level and had no professional certification documented, e.g., CPA. He received 12 points for his Bachelor's degree in accounting. Finally, he received 3 points for his Highly Successful performance appraisal for 2003. Complainant's total points were 37. C-5 was given 20 points for experience. He received 15 points for a Masters degree in Business; 0 points because he lacked a certification; and 10 points for two exceptional performance ratings. C-5's total points were 45. The six candidates selected for interviews had scores of 63, 54, 52, 47, 45 and 45. The six who were not selected had scores of 40, 39, 38, 37, 31 and 25. The panel established 45 as the cut off point. Consequently, Complainant was not referred to the SO.

We find that Complainant has not shown that the reasons given by the Agency for his non-selection are a pretext for unlawful employment discrimination. First, we find no evidence that age played any role in the selection decision. The panel members denied knowing the ages of the candidates. Also, C-3 was older than Complainant, and C-4 was only about two and a half years younger. In nonselection cases, an employee may also establish pretext by showing that his or her qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We find that Complainant has failed to make this showing. The panel in this case ranked C-5's qualifications higher than Complainant's. C-5's application indicates that his experience level was comparable to Complainant's. He had a Masters degree in business where as Complainant had a Bachelor's degree in accounting. Both lacked professional certifications, but C-5 had higher performance appraisals. We concur with the AJ that Complainant has not met his burden of proving that he was discriminated against in this particular nonselection.

Claim (11)

We find that Complainant failed to establish a prima facie case of sex, age, national origin or reprisal discrimination, because he failed to identify any similarly situated employee outside of his protected groups who had already attended the Professional Military Comptroller's Course, from August 7 to September 15, 2000, or a similar course, but was allowed to attend the PMRC and DMRC on April 15, 2005.

Claim (12)

We find that Complainant failed to establish a prima facie case of sex, age, national origin or reprisal discrimination, because he failed to identify any similarly situated employee outside of his protected groups who was recommended for the PMRC and DMRC, on September 15, 2005, after receiving a rating that was the same or lower than Complainant's 67. Moreover, he failed to identify any similarly situated employee outside of his protected groups who, while at the GS-12 grade or lower, was selected for the AMP, a course that required attendees to be GS-13 or higher.

CONCLUSION

We find that summary judgment was appropriate in this case because no genuine issue of material fact is in dispute. Complainant also failed to present evidence that any of the agency's actions were motivated by discriminatory animus towards him. We discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the record, the Agency's final order 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

____10/29/10______________

Date

1 Complainant did not allege national origin discrimination with respect to claim (1).

2 Complainant did not allege national origin discrimination with respect to claim (10).

3 This included claims (1) - (10).

4 This included claims (11) and (12).

5 The matters described in these claims are currently pending before the Commission in EEOC Appeal No. 0120073515.

6 Complainant filed a civil action in the U.S. District Court, Northern District of New York, No. 05-CV-0765. Complainant filed an amended complaint in that civil action on April 13, 2007, Docket No. 35. Judgment was rendered in favor of the Agency on July 7, 2008, Docket No. 55.

7 The Commission has the discretion to review only those issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Because Complainant did not specifically contest the AJ's dismissal of claims (2), (3), (4), (5), (6), (7) (8) and (9), we will exercise our discretion and not address these matters in the decision herein. The dismissal of claims (2), (3), (4), (5), (6), (7) (8) and the finding of no discrimination regarding claim (9) is AFFIRMED.

8 The full sentence reads "[Supervisor's name] addressed the reprisal issue by stating that she did give [Complainant] a fully successful rating because of his previous EEO activity and restated that his rating was based strictly on his work performance for the rating period in question." Id. at 19.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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