0120081220
05-29-2008
Mary Robertson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Mary Robertson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Hearing No. 420-2007-00148X
Appeal No. 0120081220
Agency No. ARANAD06NOV04551
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 16, 2008 final decision 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 Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, complainant worked
as a Materials Expediter ("Router") at the agency's Anniston Army Depot
facility in Anniston, AL. An EEOC Administrative Judge ("AJ") issued
a decision without a hearing on December 12, 2007, which the agency
fully implemented by its January 16, 2008 final decision ("FAD").
Complainant filed a timely appeal on January 7, 2008.1
On December 15, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American)
and age (72) when she did not receive a monetary award, while such awards
were given to four of her co-workers, all between the ages of 50 and 56,
and two of whom were white.
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 issued a decision without a hearing finding
no discrimination, which the agency implemented.
The AJ found that there were no genuine material facts in dispute, the
investigative record had been adequately developed and that the evidence
presented did not require any evaluation. Finally, the AJ found that
the agency had articulated non-discriminatory reasons for the disparity
in awards that the complainant did not rebut as pretextual in nature.
On appeal, complainant disputes that the agency has provided legitimate
non-discriminatory reasons to substantiate the awards given.
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"). 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.
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.
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). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request
No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351
(Dec. 14, 1995).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we determine that
there are no genuine material issues of fact present in this case.
The agency has set forth non-discriminatory reasons for the distribution
of incentive awards and complainant has failed to rebut those reasons
with evidence of pretext.
According to the agency, incentive awards were given on the basis of
production reports and input from supervisors. (Fact Finding Tr. at
58:5-16 (Mar. 27, 2007).) The crux of complainant's argument is that
a performance-tracking system is inaccurate. Accepting complainant's
argument as true for the purpose of considering a summary judgment
motion, complainant has not proven any discriminatory motives behind
the distribution of incentive awards. Whether a computer program
is flawed does not tend to prove or disprove whether complainant was
discriminated against. Thus, it cannot be a material issue of fact.
The agency cannot be faulted for relying on a problematic system when
such reliance is non-discriminatory, something neither complainant nor
the evidence rebuts.
The agency has articulated that, along with the production records,
performance ratings were used to determine incentive awards. The three
routers who received an incentive award all received "excellent" ratings
while complainant received "successful." (Fact Finding Tr. at 86-91.)
Complainant's first-line supervisor said in comparison to the other
routers, complainant ranked fifth. (Id. at 131:10-14.) The agency has
articulated non-discriminatory reasons that neither complainant nor
evidence in the record rebuts.
To speculate whether the fourth router's performance records and ratings
would warrant an incentive award if she had not performed job duties
that were not her own is inappropriate. The fourth router's performance
ratings exceeded that of complainant (Fact Finding Tr. at 91:15-20).
Yet, both complainant and the fourth router's performance records reflect
substantially less work completed than the other three routers (See
ROI ex. F-3). The fourth router received her incentive award because
she performed the duties of a vacant job, something that she was not
required to do. Complainant has failed to rebut the agency's assertion
of a non-discriminatory reason; complainant cannot show pretext.
For the same reasons discussed with respect to the lack of evidence
of racial discrimination, we affirm the AJ's finding of no age
discrimination. There is no evidence that complainant's age played a role
in the agency's decision-making process. See Reeves, 530 U.S. at 141.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 29, 2008
__________________
Date
1 On appeal, the agency argues that complainant's appeal should
be dismissed as premature because it was filed before the agency issued
its final order. We disagree. The appeal was perfected when the agency
issued its final order.
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0120081220
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081220