0120132550
10-06-2015
Jade R.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jade R.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120132550
Hearing No. 570-2012-00779X
Agency No. FBI-2009-00061
DECISION
On June 24, 2013, Complainant filed an appeal from the Agency's June 4, 2013, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-14 Supervisory Special Agent (SSA) at the Agency's facility in Seattle, Washington, from May 2002 until August 2007. Complainant was returned to investigative duties as a GS-13 agent in the same field office pursuant to the Agency's term limit for all SSA. 2
On February 4, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when: effective June 23, 2004, the terms and conditions of Complainant's employment were negatively impacted due to the Agency's Field Office Supervisory Term Limit policy. Specifically due to the Agency's policy, Complainant was returned to her Special Agent, GS-13 position effective August 2007.
The case was held in abeyance because it fell within the scope of a potential class complaint. Following the denial of class certification, Complainant's EEO complaint was processed. 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 Equal Employment Opportunity Commission 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 April 30, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The AJ noted that Complainant requested a lateral transfer to the Agency's headquarters that would have allowed her to maintain her GS-14 position. Complainant also listed three other Agency divisions for lateral transfers. The Agency offered Complainant her second preference position which Complainant declined. In August 2007, Complainant was returned to the special agent field investigative duties as a GS-13 at the facility. The AJ found that Complainant failed to establish a prima facie case of discrimination based on sex or age. Further, the AJ determined that Complainant had not shown she had been subjected to an adverse employment action. The AJ held that in June 2007, Complainant had requested a lateral transfer that would have allowed her to maintain her GS-14 grade, pay, and title and the Agency provided her with a lateral transfer to Complainant's second choice location. It was Complainant who declined the transfer.
Assuming Complainant established a prima facie case of discrimination based on sex, age and her prior EEO activity; the AJ held that the Agency articulated legitimate, nondiscriminatory reasons for its action, namely the implementation of the Agency's Field Office Supervisory Term Limit Policy (Term Limit Policy). The AJ stated that the Agency has its Term Limit Policy in order to promote continued career development among its mid-management staffed that lacked headquarters experience and encourage field supervisors to broaden their experience with diverse assignments. The Term Limit Policy limits all field supervisors to serve a maximum term of five years. The AJ then determined that Complainant failed to show that the Agency's reason was pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
The Agency issued its final order implementing the AJ's decision. Complainant appealed. She specifically indicated that the AJ improperly granted summary judgment regarding her claim of unlawful retaliation. Complainant argued that the Agency refused her request to move to the Office of International Operations without explanation. She decided to stay at her facility in Seattle and was demoted and isolated in the workplace. As a result of the pattern of harassment, Complainant was forced to resign. Complainant argued that the lateral transfer was an adverse employment action in that she was demoted to a position she held prior and her supervisory responsibilities were removed. Complainant then argued that she was denied her first choice assignment was only provided with her second choice position which was rejected. As such, Complainant asserted that the AJ's decision finding that Complainant was not subjected to a cause of action was not correct. Further, she contends that she established a causal connection between her protected activity and the Agency's action.
ANALYSIS AND FINDINGS
We must 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.
On appeal, Complainant asserted that she was improperly denied her first choice for reassignment. We note that the Agency accepted the claim as indicated above by letter dated June 18, 2009. Complainant did not challenge the Agency's defined claim. A fair reading of Complainant's formal complaint clearly focused on the Agency's policy which required her to be reassigned at the end of her five year term as a field supervisor. The matter was also presented to the AJ and Complainant failed to question the claim raised in her EEO compliant. Therefore, we find that Complainant's claim that she was denied her first choice assignment is outside of the scope of the complaint at hand. Further, upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Agency provided legitimate, nondiscriminatory reason for reassigning Complainant from her GS-14 supervisory position, namely the Agency's Term Limit Policy. As a result of the Agency's policy, Complainant was provided with a letter dated August 1, 2006, explaining her options. Complainant provided the Agency with her request for a lateral transfer giving the Agency her preferences. The Agency provided Complainant with her second choice position which Complainant rejected. We find that the Agency has met its burden and Complainant failed to provide any evidence to show that the Agency's reasons were pretext for discrimination based on her sex, age, and/or prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants 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
October 6, 2015
__________________
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 Complainant retired in April 2009.
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