0120112083
07-22-2011
Marlene A. Howard-Moore, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Marlene A. Howard-Moore,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112083
Hearing No. 5705-2010-00452X
Agency No. ARMEDCOM09JUL02934
DECISION
On March 9, 2011, Complainant filed an appeal from the Agency’s March
2, 2011, 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. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
applied for a position as an Equal Opportunity (EEO) Specialist at the
Agency’s US Army Garrison (USAG) Walter Reed Office EEO Office facility
in Washington, DC.
On August 7, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of age (55). On July 26,
2010, Complainant amended her complaint to add the bases of national
origin (Grenada), color (Black), and reprisal for prior protected EEO
activity under an EEO statute that was unspecified in the record.
Complainant alleges that she was discriminated against when she was not
selected for the position of EEO Specialist. The record shows that
the initial selection process for this position was done through the
automated Resumix system. The Selecting Official and the Human Resources
(HR) Specialist put together a list of skills needed for the position.
These skills were inputted into Resumix, which then automatically
ranked the applicants according to how well their resumes matched up
with the needed skills. The HR Specialist then took this list of scores,
developed a cut-off, and referred those applicants with a score above the
cut-off to the Selecting Official. The record shows that Complainant
did not have a high enough ranking to be on this referral list, so her
resume was never sent to the Selecting Official. However, the Selecting
Official reviewed these resumes and decided she did not want to interview
any of the candidates. Instead, someone had previously referred the
name of the eventual Selectee to the Selecting Official and the two
had discussed the Selectee’s interest in working in the department.
As the Selectee was allegedly VRA eligible, the Selecting Official chose
to hire her under VRA appointment authority. The Selectee is allegedly
much younger than Complainant, although her color, national origin and
previous EEO activity are not stated in the record.
Complainant made a number of allegations about the circumstances of
her non-selection. Complainant alleges that the Selecting Official knew
of her age and chose not to select her on that basis, or that both the
Selecting Official and the HR Specialist conspired to remove her name
from the referral list once they decided not to hire her, based on an
illegal basis. Complainant feels that she was qualified enough to have
made the referral list. The Selecting Official and the HR Specialist deny
knowing anything about Complainant until she called and inquired as to
why she was not selected. The record shows that the Selecting Official
started working at the facility after Complainant had ceased working
there. However, Complainant alleges that the Selecting Official could
have looked up her records, although the Selecting Official stated that
she did so after Complainant called and could not find any information
about Complainant. Complainant also alleges that the Selectee is not
properly qualified for the position.
.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Over the
complainant's objections, the AJ assigned to the case granted the
Agency’s October 19, 2010, motion for a decision without a hearing
and issued a decision without a hearing on February 14, 2011. The
Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency’s final agency decision
(FAD) failed to mention the additional bases of color, national origin
and reprisal. Additionally, Complainant had requested discovery of the
Report of Investigation (ROI) of an EEO compliant filed by a co-worker
(Co-worker 1), who she alleges previously harassed her. The Agency
opposed this request and the AJ stated in his decision that Complainant
had been able to conduct sufficient discovery. However, Complainant
argues on appeal that her request was ignored. Complainant also argues
that her privacy was violated when a copy of the FAD was sent to counsel
that no longer represents her.
The Agency argues on appeal that the AJ properly granted a decision
without a hearing and that Complainant’s arguments are only complaints
about the EEO process and harmless errors. The Agency also contends that
Co-worker 1’s ROI is irrelevant and would not create a genuine issue
of material fact because, even if the HR Specialist and the Selecting
Official had information about the Complainant, there is still no evidence
that their explanations were 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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at 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”). 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’s, 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”).
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. 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 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 absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff’d 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
We find that Complainant has not produced evidence that there is a
genuine issue of material fact showing that the Agency’s legitimate,
non-discriminatory reasons, namely that Complainant’s resume was
automatically scored by Resumix and did not make the HR Specialist’s
cut-off, and that the Selecting Official chose to hire a VRA appointment
candidate instead of anyone from the list, were pretext. Complainant only
alleges her subjective opinions about what she believes occurred during
the selection process.
Complainant also indicates on appeal that she does not feel she has
been allowed sufficient discovery. Complainant argued in the record
that she needs Co-Worker 1’s ROI in order to show his pattern of
discriminatory behavior and to show that the Selecting Official knew of
Complainant’s existence and that the Selecting Official influenced
the HR Specialist to remove her name from the referral list because
of her poor working relationship with Co-worker 1. However, even if
Complainant was correct and had been able to discover this information,
it would not create a genuine issue of material fact that the Agency’s
reasons were pretextual. See Beebe v. United States Postal Service,
EEOC Appeal No. 0120080066 (September 18, 2009) (finding that even if
the complainant received discovery that showed that the agency was
not in conformance with the Collective Bargaining Agreement, this
would “not be proof that the agency’s actions were attributable
to discriminatory intent.”). Similar to Beebe, even if Complainant
produced evidence in the record that another co-worker had harassed
her or that the Selecting Official and the HR Specialist conspired to
remove her from the referral list because they knew she had not gotten
along with Co-worker 1, this would not allow a reasonable finder of fact,
viewing the evidence in the light most favorable to Complainant, to hold
that the Agency’s explanations were pretext for illegal discrimination.
Therefore, we find that the record was adequately developed for the AJ
to issue a decision without a hearing.
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 (M0610)
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 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
77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 22, 2011
__________________
Date
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0120112083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112083