0120071273
05-31-2007
Janet Mitchell, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Janet Mitchell,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120071273
Hearing No. 100-2006-00202X
Agency No. CRSD200500119
DECISION
On January 8, 2007, complainant filed an appeal from the agency's November
21, 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. 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.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against based on her race (African-American), sex (female), and/or in
reprisal for prior EEO activity when, beginning in July 2004, the agency
allegedly engaged in a pattern of conduct including, but not limited
to, the improper manipulation and mishandling of her desk audit and job
reclassification review and improper interference by upper management in
her relationship with her supervisor, denying her a fair and impartial
job classification review, and resulting in the denial of her request
for a reclassification and upgrade of her position to a GS-15 grade
level in December 2004.
BACKGROUND
During the relevant time, complainant worked as a GS-14 Resource
Manager in the Office of Procurement and Property Management (OPPM)
under the Office of the Assistance Secretary for Administration.
On February 16, 2005, complainant filed an EEO complaint alleging that
she was discriminated against as stated above. At the conclusion of the
agency's 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.
Over complainant's objections, the AJ assigned to the case granted the
agency's July 5, 2006 motion for a decision without a hearing and issued
on September 1, 2006.
The AJ made the following findings of fact: Complainant was the top
ranking officer in the Resources Management Division, and all other
divisions are headed by GS-15 level employees. The deputy director
(Deputy Director) of OPPM was her first level supervisor, and the
director (Director) of OPPM was her second level supervisor. In July
2004, complainant made a request to the Deputy Director for a job
classification review. Complainant and the deputy Director reviewed
and updated her position description to reflect additional duties she
accrued since becoming Resource Manager in 1999.
On August 5, 2004, complainant met with a Human Resource contractor
(Contractor), who was responsible for the classification review. When the
Contractor's audit of the position was received in October 2004, numerous
errors and inconsistencies were discovered. Thereafter, the agency tasked
the Human Resources Specialist (HR Specialist) with redoing the audit,
and he and complainant met on November 16, 2004 to discuss the audit.
The HR Specialist determined that evaluating complainant's supervisory
responsibilities was more favorable to complainant,1 and he initially
determined that complainant should be upgraded to a GS-15 grade level.
The HR Specialist informed complainant of his findings, and complainant
emailed the information to the Deputy Director on November 18, 2004.
In November 2004, the Acting Deputy Assistant Secretary for
Administration (ADAS) contacted the Director of OPPM regarding the
results of complainant's desk audit.2 On November 17, 2004, the Director
contacted the Deputy Director regarding complainant's responsibilities,
namely duties she did and did not perform.
On December 10, 2004, the HR Specialist emailed the Deputy Director
with his conclusion that complainant's position warranted an upgrade
to the GS-15 grade level. Thereafter, the Deputy Director met with the
HR Specialist regarding the audit, and after the desk audit evaluation
was reviewed, the Deputy Director determined that complainant's position
description was inaccurate, and that she had insufficient contacts with
the Office of Management and Budget (OMB) or Capitol Hill staff to give
her sufficient points for the GS-15 rating. Specifically, complainant
had 3980 points under the job classification system, and the point range
for position classification within the GS-14 grade level is between 3605
and 4050.
Based upon the aforesaid facts, the AJ issued a decision, finding no
discrimination. The AJ found that assuming arguendo that complainant
established a prima facie case of discrimination as alleged, the agency
articulated legitimate nondiscriminatory reasons for its actions.
Specifically, the Contractor's initial classification review was poorly
undertaken, deficient, and based upon clear error; and the HR Specialist
conducted a second thorough review of complainant's position description
and calculated her score to fall within the GS-14 grade level. The AJ
then found that complainant failed to show that the agency's reasons
were pretext for discrimination. Although complainant noted that the HR
Specialist initially determined that complainant's position was performed
at the GS-15 level, the AJ noted that the Deputy Director reviewed the
audit and determined that complainant's outside contacts needed to be
decreased to accurately reflect the level of her duties. In addition,
the AJ found that, although complainant identified two comparators who
were provided with promotions due to desk audits, those two employees
attained their positions before the Deputy Director held his position
with OPPM, and the comparators had significantly different jobs and
functions than complainant. Finally, the AJ determined that the ADAS
did not have knowledge of complainant's prior EEO involvement such that
complainant could prove that she acted in reprisal against complainant.
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.
On appeal, complainant contends that there are material facts in dispute,
and she asserts that the AJ merely accepted the agency's version of
the facts as true. Furthermore, she notes that a decision without a
hearing should not be used to determine whether pretext exists, and she
is entitled to a hearing to meet the burden of showing pretext.
ANALYSIS AND FINDINGS
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").
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Moreover, we find that the AJ properly issued a decision without a hearing
because complainant has failed to show that a genuine issue of material
fact exists. We note that, during a deposition, complainant conceded that
the Director accurately asserted that she did not have frequent contacts
with OMB or Congressional Staff as stated in her position description.
Inasmuch as complainant acknowledged that her outside contacts were not
as extensive as initially identified in the aforesaid description, the
lowering of her score to reflect those lesser contacts was undertaken
for a nondiscriminatory reason. Moreover, the record is devoid of any
evidence that anyone pressured the Deputy Director or HR Specialist to
ensure that complainant's position remained at the GS-14 grade level.
In light of these facts, the Commission finds that there exists no
genuine issue of material fact in dispute that would require a hearing.
Accordingly, we concur with the AJ's determination and find that summary
judgment was appropriate in this case.
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 order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
___5/31/07________________
Date
1 The two methods for evaluating a job reclassification review
include: (1) based on technical duties; or (2) based on supervisory
responsibilities.
2 Complainant, along with other agency employees, signed a letter
regarding ADAS to the Secretary of the agency expressing concerns over the
"equality of treatment of minorities, black employees in particular."
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0120071273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071273