0120064640
03-06-2008
Katrina L. Webster, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Katrina L. Webster,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200646401
Hearing No. 100-2005-00799X
Agency No. 040023A004
DECISION
On August 11, 2006, complainant filed an appeal from the agency's July
6, 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.
At the time of events giving rise to this complaint, complainant worked
as a Secretary, GS-318-06, at the agency's Strategic Systems Programs,
in Washington, D.C. On September 14, 2004, complainant filed an EEO
complaint alleging that she was discriminated against on the basis of race
(African-American) and in reprisal for prior protected EEO activity when
she applied, but was not selected for a Management Analyst position, under
Vacancy Announcement 03-ADP-099A, at the Navy Engineering and Logistics
Office in Arlington, Virginia. At the conclusion of the 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.
The AJ assigned to the case granted the agency's motion for a decision
without a hearing, dated January 24, 2006. The AJ found that the
complaint did not warrant a hearing and over the complainant's objections,
issued a decision without a hearing on May 15, 2006. Specifically,
the AJ found that the agency's motion for a decision without a hearing
correctly stated the material facts and applicable legal standards.
The AJ then found that complainant failed to establish a prima facie
case of race or retaliation since none of the agency employees who
participated in the selection process had knowledge of complainant's
race or prior EEO activity at the time of the selection. Further,
he noted that complainant's supervisor stated that he did not have any
knowledge of her or her husband's prior EEO activity, and that no one
contacted him about complainant. The AJ also found that complainant's
husband and representative provided an affidavit stating that he had
no evidence to support his speculation that the agency discriminated or
retaliated against his wife. Ultimately, AJ concluded that complainant
failed to establish that material issues of fact existed such that a
hearing was warranted. 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.
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. 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). 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).
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
administrative judge 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
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
In the present case, we find that the record was adequately developed
for the AJ to issue a decision without a hearing. Further, we find that
complainant was given ample notice of the agency's motion and adequate
time to respond.
The record reveals the following facts in the light most favorable to
complainant: Complainant applied for a Management Analyst position,
vacancy announcement number 03-ADP-088A. She was rated qualified
along with fourteen other qualified candidates but was not referred
for consideration on the merit promotion certificate. Complainant
participated in previous EEO activity, as did her husband. In December
2003, the selecting official, Director of Information Systems and
Technology Directorate, with the Navy Engineering and Logistics Office
(SO), chose three candidates for the position, two African-American
women and a Caucasian woman.
Preliminarily, we note that the AJ erred in adopting the facts contained
in the agency's motion for a decision without a hearing. When issuing
a decision without a hearing, the AJ should consider the facts in
the light most favorable to complainant. Anderson, 477 U.S. at 255.
Nevertheless, we find that even taking the facts in the light most
favorable to complainant, she failed to establish that genuine issues
of material fact exist such that a hearing was warranted.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a prima facie case of discrimination based on sex,
complainant must show that she is a member of a protected group and that
she was subjected to an adverse employment action. Packard v. Department
of Health & Human Serv., EEOC Appeal Nos. 01985494, 01985495 (March 22,
2001). She must also show either that she was treated less favorably
than other similarly situated employees outside of her protected group,
id., or must present other, noncomparative evidence which supports an
inference that the agency was motivated by unlawful discrimination.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312
(1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002, at n.4 (September 18, 1996).
We find that complainant failed to establish a prima facie case of race
discrimination since she failed to show that other similarly situated
employees outside of her protected group were treated more favorably in
the selection process. Specifically, the record reflects that two of the
three offers for employment were given to two African-American women.
Further, nothing in the record supports an inference that the SO was
motivated by unlawful animus on the basis of race with regard to this
selection process. As such, we find that complainant failed to show
that a genuine issue of material fact existed such that a hearing was
required on this claim.
Similarly, in order to establish a prima facie case of retaliation,
complainant must present facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The Commission finds that complainant failed to establish a prima
facie case of retaliation since she failed to show that the agency was
aware of her prior EEO activity or that of her husband's. The SO, in
his affidavit, provided that he had no knowledge of complainant's, her
husband's, or any of the applicant's prior EEO activity. Although the
record shows that complainant was employed by the same agency to which
she applied for the position, the record also reflects that the SO and
other members of the selection process were not in the same division
or location as complainant. Further, even though complainant contends
that her supervisor must have informed the SO and the members of the
selection process of her EEO activity, her supervisor provided in his
affidavit that he had not provide the alleged information. As such,
we find that complainant failed to show that a genuine issue of material
fact exists such that a hearing is warranted.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
adoption of the AJ's finding of no discrimination without a hearing.
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
_____03-06-2008_____________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120064640
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064640