0120151449
11-02-2017
Hermila B.,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hermila B.,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120151449
Hearing No. 430-2014-0008X
Agency No. ARIMCOMHQ12DEC04889
DECISION
On March 19, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 20, 2014, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented before the Commission are: (1) whether the EEOC Administrative Judge's (AJ) decision to issue a decision without a hearing was proper; and (2) whether Complainant established discrimination by preponderant evidence based on race, sex, and disability when she was twice not selected for a position.
BACKGROUND
During the period at issue, Complainant worked as a EEO Specialist, GS-0260-11 in the Agency's Human Resources Office located within its Washington Navy Yard facility in Washington, DC. On December 28, 2012, she filed an EEO complaint in which she alleged discrimination based on race, sex, and disability when she was twice not selected for an EEO Specialist position, GS-0260-11, in Fort Jackson, South Carolina.2 The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge or alternatively an immediate final decision from the Agency. Complainant requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to the AJ.
The AJ determined that the allegations did not warrant a hearing and over Complainant's objections issued a summary judgment ruling on October 8, 2014, finding that Complainant had not established discrimination as alleged. The Agency subsequently issued a final order adopting in full the AJ's finding. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the AJ's decision and the Agency's adoption thereof involves clearly erroneous interpretations of material fact or law due to procedural errors and that these misinterpretations had a substantial impact on the findings at issue herein. Specifically, Complainant contends that the AJ and Agency erroneously stated that she amended the claim the Agency initially accepted for investigation when she merely corrected it. She further contends that the AJ erroneously concluded that she was not employed by the Agency when the selections at issue were made.
Complainant further claims that the Agency was tardy in completing its investigation of the issues about which she complained and claims that the EEO Investigator's line of questioning regarding her disability was inappropriate and not impartial as they were too probing regarding her medical condition but less concerned about where she was employed during the selection period at issue.
For its part, the Agency merely states that the AJ's decision to issue a decision without a hearing was proper and requests that the Commission affirm its adoption of the AJ's findings.
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), at Chap. 9, � VI.B. (Aug. 5, 2015) (if an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should analyze this case with fresh eyes.
ANALYSIS AND FINDINGS
Contentions on Appeal
Complainant's contention that a decision without a hearing was not proper in this case will be addressed below. We find, however, that the facts alleged by Complainant to be misinterpretations are not material to the outcome of this case.
Regarding Complainant's allegation that the Agency completed its investigation of this matter beyond the regulatory time limit of 180 days, we find that the AJ appropriately addressed this issue in his decision. The AJ found that although the Agency admitted its investigation was completed 17 days overdue, there were reasons presented that were beyond its control. For example, government wide furloughs; witness unavailability for a brief period of time; and a delay in receiving the fact-finding transcripts due to the sickness of the court reporter. Based on these reasons, the AJ found that the 197-day investigation did not warrant a default judgment. We agree.
Lastly, we find there is no evidence in the record to support the assertion that the EEO Investigator was bias in her efforts to gather information.
Decision Without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining 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).
After reviewing the evidentiary file in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. We note that the AJ forwarded a notice of intent to issue a decision without a hearing to the parties on August 21, 2014. We further note that Complainant replied to the AJ's notice on September 28, 2014. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Disparate Treatment
Complainant alleged discrimination based on race, sex, and disability when she was not selected for the EEO Specialist position in Fort Jackson, South Carolina. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is generally a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
Under this tripartite process, Complainant must first establish prima facie cases of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, that Complainant established prima facie cases of race, sex, and disability discrimination.
Pursuant to Supreme Court precedent, the burden now shifts to the Agency. The Supreme Court explained that an [Agency's] reason for its action must be legally sufficient to justify a judgment for the employee. Id. at 255. The Commission has interpreted the term "legally sufficient" to mean that the reason set forth by the Agency is of sufficient clarity as to allow the employee a full and fair opportunity to demonstrate pretext. See Parker v. U.S. Postal Serv., EEOC Request No. 05900110 (Apr. 30, 1990). Further, the Commission has held that, although the Agency's burden of production is not onerous, the Agency must provide a specific, clear, and individualized explanation for the action that affected the employee. See Teresita v. Dep't of Defense, EEOC Request No. 05950931 (Nov. 6, 1997).
We now examine whether the Agency stated a legitimate, nondiscriminatory reason for the action alleged to be discriminatory. The Agency stated that Complainant applied and was considered eligible for the position under the first vacancy announcement. The Agency further stated that Complainant and only one other applicant was placed on the Certificate of Eligibles by the Office of Personnel Management (OPM). The Agency explained that OPM later determined that the other applicant was ineligible leaving Complainant as the only remaining eligible. According to the Agency, under its policy, a sufficient list of eligibles must produce at least three applicants. As a result, the Selecting Official (SO) sought and received permission to re-advertise the position to external candidates. We note that no one was selected for the position under the first vacancy.
Regarding the position as advertised under the second vacancy, the Agency stated that all the candidates referred for consideration by OPM were preference eligible veterans. Complainant was not a preference eligible veteran and, as such, was not referred for consideration. Therefore, she was not selected for the position.
The SO stated that he had no input into which candidates were placed on either Certificate of Eligible candidates as that process is completed solely by OPM. We find that the Agency's explanations regarding both vacancies are legitimate, nondiscriminatory reasons for its actions.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretexts for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus based on her race, sex, and disability.
In her attempt to demonstrate pretext, Complainant argues that she was a Schedule A applicant and therefore could have been selected non-competitively and that she was more qualified than the person selected. Regarding Complainant's first attempt to show pretext, we find that OPM's Schedule A authority gives the Agency the ability to consider hiring an individual with a disability non-competitively but does not require it to do so. Further, we find that her second attempt to prove pretext, that is, that she was more qualified than the selectee, does nothing to refute the Agency's arguments that she was not selected under the first vacancy because too few applicants were found eligible and not selected under the second vacancy because OPM did not find her an eligible candidate because she was not a preference eligible veteran. We therefore find that Complainant did not meet her pretext burden.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of decision without a hearing was appropriate. We further find that Complainant did not establish discrimination by preponderant evidence when she was not selected based on race, sex, and disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__11/2/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Both vacancies were for the same job; Complainant essentially alleged discrimination when she was not selected for the EEO Specialist position announced under Vacancy Number SCDU12021720728408, which closed on August 28, 2012, and then subsequently re-announced under Vacancy Number SCDU120217250784604D, which closed on November 19, 2012. See Formal Complaint, ROI, 153.
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