0120150391
06-02-2017
Jonelle R.,1 Complainant, v. Scott Pruitt, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jonelle R.,1
Complainant,
v.
Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120150391
Hearing No. 520-2013-00341X
Agency No. 2012-7362-R02
DECISION
On November 5, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 3, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Administrative Judge's (AJ) decision to issue a decision without a hearing was appropriate; and (2) whether Complainant established discrimination based on race (Asian), sex (female), age (52) by preponderant evidence when, on April 12, 2012, she learned she was not promoted to the position of Supervisory Interdisciplinary Scientist/Engineer announced in Vacancy Number RTP-R2-MP-2012-0006; and (3) whether Complainant established discrimination based on reprisal (prior EEO activity) by preponderant evidence when, on August 15, 2012, she received a lower performance award than ones received in prior years.
BACKGROUND
During the period at issue, Complainant worked as a Regional Pretreatment Coordinator, GS-0819-13, in the Agency's Water Compliance Branch, Division of Enforcement and Compliance Assistance, Region II, located in New York, New York. On July 6, 2012, she filed an EEO complaint alleging discrimination on the bases and issues as defined in the "Issues Presented" section of this decision. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to the AJ.
On April 24, 2014, the Agency submitted a Motion for Summary Judgment (Agency Motion) to which Complainant responded on May 22, 2014. On September 26, 2014, the AJ granted the Agency's Motion and issued a decision in favor of the Agency finding that Complainant did not establish discrimination as alleged. On October 3, 2014, the Agency issued a final order adopting fully the Agency's findings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there are too many inconsistencies in the record for the Commission to uphold the AJ's decision. For its part, the Agency contends that the record does not contain any genuine issue of material fact as to pretext, and that Complainant did not adequately challenge the veracity of the Agency's legitimate, nondiscriminatory reasons and did not provide evidence of a discriminatory motive on the Agency's part.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's and Agency', factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining 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/her 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).
We note that the Agency's Motion was submitted to the AJ and Complainant on April 24, 2014. We further note that the AJ found that the Agency's Motion accurately reflected a comprehensive statement of the undisputed material facts regarding Complainant's allegations and the Agency's proffered nondiscriminatory reasons as to why Complainant was not promoted to the position at issue and why her performance award was lower than ones received in prior years.
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was provided ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Complainant's response was submitted to the AJ and the Agency on May 22, 2014. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Discrimination
Complainant alleges discrimination based on race, sex, and age when she was not selected for the position announced in Vacancy Number RTP-R2-MP-2012-0006. Complainant also alleges discrimination based on reprisal when her performance award was lower than ones received in prior years.
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is generally a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, that Complainant established prima facie cases of race, sex, age, and/or reprisal discrimination.
We now look to see whether the Agency provided legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. The Agency's burden to articulate a legitimate, nondiscriminatory reason for its action is not onerous. The Supreme Court explained that an [Agency's] explanation for its actions must be legally sufficient to justify a judgment for the employee. Id. at 255. The Commission has interpreted the term "legally sufficient" to mean that the reason set forth is of sufficient clarity as to allow the employee a full and fair opportunity to demonstrate pretext. See Parker v. U.S. Postal Serv., EEOC Request No. 05900110 (Apr. 30, 1990). Further, the Commission has held that, although the Agency's burden of production is not onerous, the Agency must provide a specific, clear, and individualized explanation for the action that affected the employee. See Teresita v. Dep't of Defense, EEOC Request No. 05950931 (Nov. 6, 1997).
Here, the Agency stated that Complainant was not promoted to the position at issue because it chose a more qualified candidate. Among other things, the Agency pointed to the educational accomplishments of the Selectee, who held a M.S. degree in environmental engineering and was close to receiving a professional engineering license. Complainant did not have an advanced degree. The Agency also provided the contemporaneous interview notes of the Selecting Official (SO) which supports the SO's determination that the Selectee had a more impressive interview. For example, the SO's interview notes show that when Complainant was asked to describe her supervisory or leadership style, she responded, "I was Acting Section Chief for 4 months, and it stressed that we needed to work together. I collaborated with staff to get things done and give feedback." The Selectee responded that she had "[b]een the NPDES TL [Team Leader] since 2009. Directly assigning and reviewing work, interviewing interns was able to work to get the most from work plans. Routinely act as BC [Branch Chief], coordinate with other managers, serve as Acting Section Chief. RA [regional administrator], special assistant for 1.5 years, courses/meetings." When asked to describe a difficult employee or co-worker and what happened, Complainant stated that, "I haven't really had that experience but if I did I would raise it to my supervisor." The Selectee spoke about, "[a]n employee on the team who had bad feelings about work. My review of assigned reports and comments were fought on every count. Since then by being patient with him he has improved dramatically." Thus, we find that the Agency met its burden of articulating a legitimate discriminatory reason for Complainant's non-promotion allegation.
Regarding the Agency's decision to award Complainant $800.00 during fiscal year 2012 for her performance instead of the $1000.00 she received in fiscal year 2011, the Agency stated that Complainant's award was not retaliatory but instead was based on the pool of funds available for that year. For example, in fiscal year 2009, Complainant received a performance award of $2,000.00, and in fiscal year 2010, she received a performance award of $1,600.00. See ROI at 156. In fiscal year 2011, as we indicated above, the award amount dropped to $1000.00. This information indicates that Complainant's performance awards varied (or were lowered) even before she engaged in prior EEO activity and is sufficient to meet the Agency's burden to state a legitimate, nondiscriminatory reason for its action.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretexts for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward Complainant based on her race, sex, age, and/or previous EEO activity.
In her attempt to show pretext, Complainant's asserts essentially two things: (1) that she was more qualified than the Selectee; and (2) the SO had a reputation of hiring attractive, young white women. Regarding the first assertion, we note that, in nonselection cases, while an agency's articulated legitimate reason for its actions may be shown to be pretextual where a complainant's qualifications are demonstrably superior to those of the selectee's, an employer has the discretion to choose from among equally qualified candidates. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Moreover, an agency has greater discretion when it is filling management level or specialized positions. Hickman v. Department of Justice (Drug Enforcement Agency), EEOC Appeal No. 01A11797 (December 20, 2001) (citing Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)).
We find that Complainant simply did not establish that her qualifications were "plainly superior" to those of the Selectee. The record indicates that Complainant, the Selectee and another employee were found to be the top candidates. Among these three qualified candidates, the SO choose the Selectee. Although Complainant had longer years of service, that fact by itself, does not establish pretext where, as here, the Selectee also had favorable qualifications such as education, experience and a better interview performance. We find no persuasive evidence that discriminatory animus played a role. Upon review, the Commission finds that Complainant did not meet her burden to show that the Agency's stated reasons for her non-promotion were pretextual.
Regarding the second assertion, the Commission finds that Complainant presented no evidence, other than her own belief, to demonstrate that her race, sex, or age were factors in the decision not to select her for the position at issue in this case, or that retaliation was a factor when her performance award was less than those received in prior years. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a decision without a hearing was proper. We further find that Complainant did not establish discrimination based on race, sex, or age when she was not promoted to the position announced in Vacancy Number RTP-R2-MP-2012-0006. Finally, we find that Complainant did not establish discrimination based on retaliation when her performance appraisal was less than those received in prior years.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
_6/2/17_________________
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
0120150391
8
0120150391