0120171056
08-09-2018
Janet Y. Taylor, a/k/a Chere S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janet Y. Taylor, a/k/a
Chere S.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120171056
Hearing No. 560-2014-00359X
Agency No. IRS-14-0166-F
DECISION
On January 24, 2017, 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 December 23, 2016, 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. For the reasons stated below, we affirm the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision, without a hearing, which found that Complainant did not demonstrate that she was subjected to discrimination.2
ISSUE PRESENTED
The issue presented is whether the AJ erred in issuing a decision without a hearing, and, whether the Agency's final order erred in implementing the AJ's finding that Complainant did not establish that she was discriminated against.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Seasonal Tax Examining Technician, GS-4 at the Agency's Wage and Investment Division facility in Kansas City, Missouri. On February 5, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. She was not selected for the position of Tax Examining Technician under Vacancy Announcement 13CS3-W1B1511-0592-4-6-IR;
2. She was not selected for the position of Tax Examining Technician under Vacancy Announcement 13CS3-WIB1527-0592-5-7-AS;
3. She was not selected for the position of Tax Examining Technician under Vacancy Announcement 13CS3-WIXO1183-0592-5-CA;
4. On January 15, 2014, the Agency placed her in non-work status; and
5. On or about December 9, 2014, Complainant was denied official time for EEO activity.
Following an investigation, Complainant requested a hearing before an Administrative Judge. Prior to the hearing, the Agency submitted a motion for a summary decision. Complainant responded to the motion. The AJ found that the case was ripe for a summary decision as no material facts were at issue. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, with regard to claim no. 1, Complainant made the best qualified list for the GS-5 position but was not selected for one of the two positions. The selectees were a white female and male. Management explained that Complainant was not selected because she was already in a Tax Examining Technician GS-592-4/5/6 career ladder position. Therefore, she was essentially competing for a position that she already held. Moreover, it was noted by the selecting official (S-1), that Complainant was not performing at a fully successful level at the GS-4 level, so she would not have been selected for a GS-5 position even under normal circumstances.
Regarding claim no. 2, Complainant was placed on the best qualified list for the GS-5 position and her application was reviewed. Complainant was not selected for the position because she was not performing successfully in her GS-4 position. The person selected for the position, was an African-American female. The selecting official (S-2), indicated that he was not aware of Complainant's race or prior EEO activity, but he assumed she was a female based on her name.
With respect to claim no. 3, over 40 candidates were selected for the vacancies. Complainant was included as a qualified candidate. The selecting official (S-3) indicated that in order to select the 40 selectees for this position, she used a skip criteria to select the applicants. The skip criteria consisted of dividing the total number of qualified applicants by the number of selections needed to be made. This resulted in selecting every fifteenth person on the list. S-3 explained that Complainant was not selected for the positon because she did not fall within the selected group using the skip criteria. S-3 indicated that she was not aware of Complainant's sex, race, or prior EEO activity.
Regarding claim no. 4, Complainant alleged that on January 15, 2014, she was placed on non-work status by the Agency. The Agency explained that Complainant was a seasonal employee who was subject to the Agency's policy of releasing employees when the workload was reduced. Management explained that the Agency used a ranking system which was approved by the collective bargaining agreement. The system is based on quantifiable work productivity scores. The Agency needed to retain 60 employees, so it determined that the cut-off score would be 317. Based on Complainant's poor performance rating, she was ranked 535A, which was beyond the cut off score. Therefore, she was released to a non-work status.
Finally, with respect to claim no. 5, on December 10, 2014, Complainant indicated that she emailed her manager to request eight hours of official time to work on her EEO complaint. The manager offered Complainant leave but Complainant did not use the leave. Soon thereafter, Complainant was placed in non-duty status. The AJ found that the Agency erred in not considering Complainant's request for official time. The AJ issued an Order which extended the discovery period and amended the complaint. The AJ ordered that managers be advised that complainants are entitled to official time to work on their EEO complaints. The AJ noted that official time was not needed because Complainant was now in a non-work status. Instead, the discovery period was extended to provide Complainant with additional time to respond to the Agency's discovery requests.
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons regarding claims 1 - 4, and Complainant did not show that the Agency's reasons were pretext for discrimination. The AJ also found that Complainant did not show that she was so better qualified than the selectees that discrimination should be inferred. Complainant also argued that her less than fully successful performance rating was fraudulent. The AJ found however that the performance rating was not at issue in this case. The AJ found, however, that Complainant did not demonstrate that her performance appraisal was illegally considered, nor did she show that discriminatory animus was involved in the selection decisions.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that a decision without a hearing should not have been issued. Complainant maintains that there are genuine issues of material fact in dispute and genuine issues of credibility. Complainant also contends that the AJ erred in not consolidating two of her other cases that are in the EEO process and related to the instant case. Complainant asserts that the AJ decision has fragmented her cases. Complainant explains that in one of the cases, she disputes that she was not performing at the fully successful level. She also maintains that she has a complaint that disputes the accuracy of the appraisal and the lack of points used to place her in non-work status. Further, Complainant contends that she should have been granted a remedy because of management's denial of her request for official time. Complainant requests that she be given a hearing before an Administrative Judge so that she may be able to prove her case.
In response, the Agency contends, among other things, that Complainant's fragmentation argument is untimely, lacks merit, and contradicts her previous legal position. The Agency notes that Complainant argues that her other complaint involved her performance appraisal, a claim that is connect to her nonselection and non-work status. The Agency maintains however, that when Complainant sought EEO counseling regarding the instant complaint, her representative was asked whether these claims were an amendment of her complaint regarding her performance appraisal. Complainant's representative responded that the issues Complainant was raising were not like or related to her existing complaint. The Agency noticed that some of Complainant's claims were like and related and therefore requested that the claims be consolidated, but, Complainant's representative objected to the consolidation so it was not done. Moreover, the Agency asserts that Complainant did not request consolidation before the AJ even though the AJ asked about other EEO complaints.
Finally, the Agency argues that Complainant has no remedy for her official time claim as she is in a non-work status. Moreover, the AJ allowed Complainant extra time for discovery as a result of the Agency's failure to allow official time. The Agency requests that the final order be affirmed.
ANALYSIS AND FINDING
AJ's Issuance of a Decision Without a Hearing
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. 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. 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).
Upon review of the record, we find that there are no genuine issues of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all of her bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was stated above. While Complainant disagrees with the Agency's finding, she has not provided any evidence which suggests that her protected bases were a factor in the nonselections. We find Complainant also did not demonstrate that she was so better qualified than the selectees that discrimination could be inferred.
With respect to being placed in a non-work status, we find that Complainant did not show that any other employee was allowed to work when they did not make the cut-off score. Moreover, Complainant provided no evidence that discriminatory animus was related to the establishment of the cut-off score.
Finally, we find that Complainant did not show that the AJ erred with respect to her claim that she was denied official time. The Commission has long held that an allegation pertaining to the denial of official time states a separately cognizable claim alleging a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. Complainant v. Social Security Administration, EEOC Appeal No. 0120150144 (Nov. 1, 2016). The Commission has the authority to adjudicate and remedy a violation of 29 C.F.R. � 1614.605(b) without a finding of discrimination, as the focus of an investigation is not on the motivation of the allegedly offending agency, but strictly on whether the employee was denied a reasonable amount of requested official time. Id. Given the specific facts of this case, we find that the AJ provided an appropriate remedied here.
With respect to Complainant's contentions on appeal, we find that other than her conclusory statements, she has not provided any evidence which shows that discriminatory animus was involved. We note, that Complainant argued that her complaint was fragmented but the record shows that she did not request consolidation before the AJ. Moreover, her representative previously indicated that he did not think that consolidation was appropriate. Further, with regard to the issue of official time, given that Complainant never used any leave and is no longer in a work status, there is simply no further remedy available.
CONCLUSION
We find that the Equal Employment Opportunity Commission Administrative Judge's issuance of a decision without a hearing was appropriate as no material facts are at issue and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order finding no discrimination is AFFIRMED.
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
_8/9/18_________________
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 On appeal, the Agency notified the Commission that, on January 18, 2018, Complainant filed a civil action in the United States District Court for the Western District of Missouri, Civil Action No. 4:18-cv-00047. An examination of the civil action complaint, however, does not indicate that it involves the identical matters at issue in this appeal. Therefore, contrary to the Agency's request, we will not terminate the processing of Complainant's appeal.
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