0120064478
05-16-2008
Irene C. Thiele, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Irene C. Thiele,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200644781
Hearing No. 350a50154x
Agency No. AMS200400999
DECISION
JURISDICTION
On July 21, 2006, complainant filed an appeal from the agency's July
14, 2006, 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). 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
an Agricultural Commodity Grader, GS-1980-9 at the agency's Agricultural
Marketing Service, Fruit and Vegetable Programs, Fresh Products Branch
in Commerce, California. On May 18, 2005, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
race (Native American) and age (62 at relevant time) when she was denied
a reassignment to Houston, Texas.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, complainant was provided 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. After both parties submitted motions for a decision without a
hearing, the AJ assigned to the case issued a decision without a hearing
on June 12, 2006. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged. From that order complainant brings the
instant appeal.
STANDARD OF REVIEW
In appeals where no hearing was held, our review is de novo.
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 feet 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 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).
In the present case, the Commission finds that grant of summary judgment
was appropriate, as no genuine dispute of material fact exists.
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). He
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency explains that it selected another employee for reassignment
over complainant because, during a one-week trial detail to the Houston
facility, complainant did not perform the duties of the position as well
as the employee ("S1") who was ultimately selected for the reassignment.
The agency states that the criteria it employed to identify the
best qualified candidate for the reassignment were "knowledge of the
inspection process, ability to be a team player, willingness to work
overtime and ability to work with customers." The agency rated S1 higher
on each of these criteria than complainant. In addition, the agency
identified a particular problem with complainant's performance that
led to her nonselection. During her detail, complainant made a mistake
in the routine inspection of tomatoes. When a supervisor pointed out
the mistake, complainant insisted, incorrectly, that she had not made
a mistake. These are legitimate, non-discriminatory reasons for the
agency's actions. Complainant does not now dispute that she made a
mistake in inspecting the tomatoes nor has she adduced any evidence
that the agency's reasons for its actions are a pretext to conceal
discriminatory animus.
CONCLUSION
We conclude that there were no material issues of fact and that a decision
without a hearing was proper. We find that complainant failed to prove
that she was subjected to discrimination as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
__________________
Date
01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director,
Office of Federal Operations Hilda Rodriguez, Director,
Appellate Review Programs FROM: Neal Thomas, Attorney 5/16/08
Shelley Kahn, Supervisor Melissa Miller, Division
Director Appeal Number(s) 0120064478 Agency Number(s) AMS200400999
Hearing Number(s) 350a50154x Complainant(s): Irene C. Thiele Agency:
Department of Agriculture Decision: affirmed Statute(s) Alleged Title
VII and ADEA Basis(es) Alleged OA - Age and RI - Race/Amer. Indian/Alaska
Native Issue(s) Alleged P3 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits
decision
? 4B - OFO found discrimination
List basis code(s):__________________
List issue code(s):__________________
? Comp. damages (C3) awarded?
X 4C - OFO found no discrimination/made no
determination re: discrimination
? 4E - Agency found discrimination
X 4F - Agency found no discrimination
X 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
in part and reversed in part, then (3L)
code required if at least one issue is
remanded)
? 3L - OFO remanded PART of agency's merits
Decision (NOTE: Do not use 3L with a
4B code) ? 3P - Adverse inference
? 4K - AJ found discrimination
X 4L - AJ found no discrimination
? 4M - AJ made no finding
X 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
X 4T - AJ issued Summary Judgment decision
X 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages-APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to agency for remedies
? 4Q - Compliance required
Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed
Merit Modified ? Procedural Affirmed = A
? Procedural Reversed = B
? Procedural Modified = C ? Procedural Affirmed = D
? Procedural Reversed = E
? Procedural Modified = F ? Procedural Affirmed = G
? Procedural Reversed = H
? Procedural Modified = I
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Irene C. Thiele Department
of Agriculture 0120064478
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 0120045719 2x
y Same case. Procedural remand
nt0 May 16, 2008
Attorney Date
1 Due to a new data system, this appeal has been redesignated with the
above-referenced appeal number.
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0120064478
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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