Gwendolyn Maddox, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 30, 2013
0120110286 (E.E.O.C. Sep. 30, 2013)

0120110286

09-30-2013

Gwendolyn Maddox, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Gwendolyn Maddox,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120110286

Hearing No. 430-2009-00369X

Agency No. 08-67001-02532

DECISION

Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal1 from the Agency's September 21, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, NF-2005-02 at the Agency's Marine Corps Community Services Camp Lejeune, Financial Management Division, Property Control Branch, in Jacksonville, North Carolina. Complainant's First Level Supervisor was the Supervisory Supply Technician (S1 - Caucasian, female 51). Complainant's Second Level Supervisor was the Manager of the Property Control Branch (S2 - Caucasian, male, 62).

On October 31, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (49), and reprisal for prior protected EEO activity (serving as a witness in a coworker's EEO complaint in September 2004; filing an informal EEO complaint against S1 in September 2004; contacting an EEO Counselor in the instant complaint on September 2, 2008) when:

1. On August 28, 2008, S2 did not select her for the position of Supervisory Supply Technician, NF-2005-03, advertised under vacancy announcement number 165-08; and

2. In September 2008, S2 and S1 subjected her to hostile work environment harassment when:

a. Over a two-week period, S2 followed her every time she got up from her desk;

b. On September 8, 2008, S1 called her to the office and ordered her to sit down;

c. On September 9, 2008, S1 attempted to give her a Letter of Admonishment (LOA) and S2 called her a liar; and

d. On September 15, 2008, S2 put a copy of the LOA in her inbox with a notation that she refused to sign it.

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. When Complainant did not object, the AJ assigned to the case granted the Agency's March 25, 2010 motion for a decision without a hearing and issued a decision without a hearing on July 30, 2010. Regarding claim 1, the AJ found that Complainant failed to prove, by a preponderance of the evidence, that the Agency's articulated reasons for her non-selection were a pretext for race, sex, age, or reprisal discrimination. Regarding claim 2, the AJ found that Complainant failed to establish a claim of harassment because she did not show that the incidents were based upon her race, sex, age, or prior EEO activity, or that the incidents were sufficiently severe or pervasive to constitute a hostile work environment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged.

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 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).

Upon review, we find that there is no genuine issue of material fact. The record has been adequately developed, Complainant was given 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 had the opportunity to engage in discovery. 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.

Non-Selection

Assuming, arguendo, that Complainant established a prima facie case of race, sex, age, and reprisal discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for selecting the Selectee (Caucasian, male, 38) over Complainant. Specifically, S2 averred that he relied on the recommendation of a three-member interview panel consisting of S1, P1 (Caucasian, female, 48), and P2 (Caucasian, male, 57). In addition, the interview panelists averred that the Selectee was the best qualified for the position based on his interview responses, particularly his detailed responses to the questions pertaining to supervisory experience in a supply/property environment.

Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were pretextual. In an attempt to show pretext, Complainant argued that S2, S1, P1, and P2 manipulated the interview process to keep her from getting the position. In addition, Complainant argued that she was the best qualified for the position based on her resume, her KSAs, and the fact that she does the Supply Technician job every single day.

Upon review, we find that Complainant failed to show that the Agency's reasons are a pretext for race, sex, age, or reprisal discrimination. In non-selection cases, a complainant may establish pretext by showing that her qualifications are "plainly superior" to those of the selectee. Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)). However, an employer has the discretion to choose among equally qualified candidates. See Tong v. Dep't of Def., EEOC Appeal No. 0120053163 (June 27, 2007). In addition, an employer has greater discretion when filling management level or specialized positions. See Hickman v. Dep't of Justice, EEOC Appeal No. 01A11797 (Dec. 20, 2001) (citing Wrenn v. Gould, 808 F.2d, 493, 502 (6th Cir. 1987).

Here, we find that Complainant's qualifications are not so "plainly superior" to the Selectee's qualifications as to compel a finding of pretext. Instead, the record shows that Complainant and the Selectee had comparable qualifications for the supervisory position. The record reflects that Complainant had approximately 11 years of supervisory experience: 11 years as the Supervisor for the Agency's Snack Bar and 2 months as the Acting Supervisory Supply Technician. The record reflects that the Selectee had approximately 10 years of supervisory experience: 5 years as the Second Assistant Manager for Advance Auto Parts, 2 months as the Acting Supervisor for the Agency's Prepaid Warehouse, and 5 years as the Assistant Manager for Central Warehouse. Although Complainant argued that she was more qualified than the Selectee because she had numerous years of experience as a Supply Technician and the Selectee did not, we note that the vacancy announcement required experience in a supply/property environment (including supervisory experience), but did not specifically require Supply Technician experience. Absent a showing that race, sex, age, or prior EEO activity entered into the decision making process, we decline to substitute our judgment for that of S2, S1, P1, and P2.

Hostile Work Environment Harassment

Upon review, we find that Complainant failed to establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the incidents complained of were based on her race, sex, age, or prior EEO activity.

Regarding incident (a), Complainant averred that, over a two-week period, S2 followed her every time she got up from her desk. In addition, Complainant averred that S2 was trying to intimidate her because she had told him she planned to file an EEO complaint about the non-selection. In contrast, S2 denied following Complainant and averred that he walked between the office and the warehouse in the scope of his managerial duties. Even assuming that S2 followed Complainant around, we find no evidence in the record, aside from Complainant's speculation, that S2 did so based on her race, sex, age, or prior EEO activity.

Regarding incidents (b), (c), and (d), the record reflects that they involve a September 2, 2008 LOA issued to Complainant by S2. The record contains an August 27, 2008 investigative report from the Security Systems Analyst to S2. The investigative report found that, on August 4, 2008, Complainant entered the Main Exchange through the employee entrance without a nametag, refused to sign the visitors log as required, was rude to the store detective when she was advised to either wear a nametag or sign the visitors log, and pushed the store detective's hand away when the store detective attempted to give her a temporary nametag. Although the investigative report recommended that S2 take "appropriate disciplinary action" against Complainant, S2 issued Complainant a non-disciplinary LOA. S2 asked S1 to give Complainant a copy of the LOA. On September 8, 2008, S1 called Complainant to the office in order to give her a copy of the LOA. Complainant averred that S1 ordered her to "sit down" and said it in a "nasty way." On September 9, 2008, during a meeting in which S1 attempted to give Complainant a copy of the LOA, S2 said that Complainant was lying about what happened on August 4, 2008. Complainant did not receive a copy of the LOA from S1 on either September 8 or 9, 2008. On September 15, 2008, S2 put a copy of the LOA in Complainant's inbox with the following notation: "9-9-08 Refused to sign on advice from Union Repr." Based on the above, we find that Complainant did not show that the actions of S2 and S1 were based on her race, sex, age, or prior EEO activity.

After a review of the record in its entirety, the Commission finds that the AJ's decision without a hearing was appropriate, as there is no genuine issue of material fact. Furthermore, it is the decision of the Commission to AFFIRM the Agency's final order because the preponderance of the evidence does not establish that race, sex, 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

___9/30/13_______________

Date

1 Complainant did not submit a statement or brief in support of the appeal.

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0120110286

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013