Janet Mitchell, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 31, 2007
0120071273 (E.E.O.C. May. 31, 2007)

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."

??

??

??

??

2

0120071273

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120071273