01a41408
07-13-2005
Peggy L. Pearson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Peggy L. Pearson v. Department of Homeland Security
01A41408
July 13, 2005
.
Peggy L. Pearson,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.<1>
Appeal No. 01A41408
Agency No. OSH-010-02
Hearing No. 120-2003-00177X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant time, complainant was employed as an Administrative
Assistant, GS-06, at the agency's Office of Emergency Preparedness,
Office of Public Health and Science in Rockville, Maryland. On April 18,
2002, complainant filed a formal EEO complaint. Therein, complainant
claimed that she was discriminated against on the bases of race
(African-American), age (D.O.B. 6/10/51), and in reprisal for prior EEO
activity when:
(a) on January 18, 2002, she was again denied a career ladder promotion
to the GS-7 level;
(b) on January 18, 2002, she was denied a 2001 performance evaluation;
(c) on March 29, 2002, she learned that she was not approved for a
GSA training class;
(d) on April 8, 2002, she was told to sign a calendar year 2002
performance plan for a warehouse position consisting of duties of which
she had no knowledge;
(e) since September 2001, she has not been selected for three
Administrative Assistant positions:
(1) Vacancy Announcement Number OS-01-163 opened September 21, 2001
and closed October 11, 2001; (2) Vacancy Announcement No. OS-01-207,
opened December 3, 2001 and closed December 24, 2001; and (3) Vacancy
Announcement No. OS-02-060, opened March 21, 2002 and closed April
12, 2002;
(f) in July 2001, she was transferred to the OEP warehouse with lesser
duties and poor working conditions;
(g) from March 1, 2001 to February 5, 2002, the agency hired independent
contractors to perform administrative work instead of allowing
complainant's work skills to be utilized; and
(h) on June 6, 2002, she learned that she was not selected for the
position of Program Analyst, GS-343-7/9, under Vacancy Announcement
Number OS-02-081 in April 2002.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a motion for
summary judgment or in the alternative, an Agency's Motion for a Decision
Without a Hearing.<2>
On September 5, 2003, the AJ granted the agency's Motion for a Decision
Without a Hearing. The AJ adopted and incorporated the agency's Motion,
finding no discrimination. The AJ further found that complainant
failed to establish a prima facie case of race, sex, age and reprisal
discrimination. The AJ also found that even if complainant established
a prima facie case of reprisal discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ concluded
that complainant did not establish that more likely than not, management's
articulated reasons were a pretext to mask unlawful retaliation.
Further, the AJ noted that in her response to the agency's motion,
complainant made a reference to disability as a basis of discrimination
(depression; anxiety; knee pain; damage to biological clock; environmental
sensitivities; and a variety of other symptoms). The AJ further noted
that there was nothing in the record that indicated that the agency
accepted disability as a basis, or that complainant requested that
her complaint be amended to include disability as a basis. The AJ,
however, concluded that complainant failed to establish a prima facie
case of disability discrimination. Specifically, the AJ noted that
complainant does not provide any evidence that supports a finding that
she is substantially limited in a major life activity; that she did
not establish that the agency was aware of her having a disability; and
that she was treated less favorably than similarly situated employees
who are not members of her protected group.<3>
In a final order dated December 2, 2003., the agency implemented the
AJ's decision finding no discrimination.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Claim (a)
The record contains an affidavit from complainant's supervisor wherein
the Supervisor stated that on July 30, 2001, complainant asked him to
promote her to the GS-7 level. The Supervisor stated that he informed
complainant that he could not promote her because she had only been under
his supervision for two weeks. The Supervisor stated that he advised
complainant to see her previous supervisor because he could recommend
her for a promotion. With respect to complainant's argument that a
Director of the Division of Emergency Readiness and Operations told
her supervisor not to sign anything promoting her to the GS-7 level,
the Supervisor stated that the Director "did not tell me not to sign
anything promoting her."
The record also contains an affidavit from the Director of Administration
and Support (Director). Therein, the Director stated that two
supervisors asked for her advice on complainant's career ladder promotion.
Specifically, the Director stated that the two supervisors wanted to
know whether they had to promote an employee in a career ladder position
to the next level automatically. The Director stated that he informed
them that promotion was not automatic and that the employee needed to
be working at that grade level to receive a promotion. The Director
stated that a review of complainant's e-mails indicated poor writing.
The Director stated that while she does not supervise complainant, she
would not promote complainant to the GS-7 level "based on her work that
I have seen." Furthermore, the Director stated that complainant's race,
age, sex and prior protected activity were not part of her discussions
with the supervisors concerning the career ladder promotion.
Claim (b)
The Supervisor stated that he did not deny complainant's 2001 performance
evaluation. The Supervisor further stated that all employee 2001
performance evaluations were not timely completed, including complainant's
performance evaluation. The Supervisor stated that the reason for the
incomplete evaluations was "due to the work we do here as an emergency
response unit, we had a mission in New York World Trade Center that
we had been working on 12 hours a day - 7 days a week." Furthermore,
the Supervisor stated that on April 11, 2002, complainant received a
"Fully Successful" on her 2001 performance evaluation.
The Director stated "none of us got our performance evaluations on time."
The Director further stated that complainant was not singled out because
of her age, race, sex or prior protected activity when she did not
receive her 2001 performance evaluation on time.
Claim (c)
The Supervisor stated that after complainant showed him a training
booklet, he instructed complainant to fill out an application.
The Supervisor stated, however, that he never received complainant's
training requests. The Supervisor further stated that at one point,
he was informed by a named agency official that complainant requested to
go to training and needed a credit card (for purposes of paying for the
training). The Supervisor stated that he went to a named agency official
to get an application for a credit card in order to provide complainant
with training, and that she referred him to another agency official.
The Supervisor stated that he received complainant's application from
a named agency official and returned it to complainant. The Supervisor
stated "that is the last I heard of the applications. If she submitted an
application it never came through me." Furthermore, the Supervisor stated
that the Director of the Division of Emergency Readiness and Operations
never instructed him not to sign anything for complainant's training.
Claim (d)
The Supervisor stated that it was April 11, 2002, not April 8, 2002,
when complainant received and signed the 2002 performance plan.
The Supervisor further stated that he explained to complainant that �
these duties are regular administrative duties that she was doing at the
Twinbrook office." The Supervisor stated that he and complainant had a
discussion reflecting that complainant's duties would probably change
"because the Warehouse would probably be a little different but that
they would still be administrative duties." The Supervisor stated
that he revised complainant's work plan stating that "the duties on
her work-plan were the duties she had been assigned and that she had
been doing for the last 6 months, as the administrative technician at
the Warehouse." Furthermore, the Supervisor stated that complainant
did not sign something that she had no knowledge of because "she had
been doing all of these duties before."
Claim (e)
A fair reading of the record reflects that claims (e)(1) and (e)(3)
address the same position that was initially announced, and then
subsequently re-posted. Regarding claims (e)(1) and (e)(3), the Acting
Director stated that he had to fill the position, and re-advertised the
vacancy announcement two or three times because there were no applicants
on the list at the level that he required. The Acting Director further
stated that he was looking for someone "who was a very good writer and
for someone who had done this work before.� The Acting Director stated
that he chose the selectee for the subject position because she was more
qualified than the other candidates. The Acting Director stated that
"the basic difference between [Selectee] and the other applicants is
that she has been a secretary to high level positions in the past."
Furthermore, the Acting Director stated that complainant's race, sex,
age and prior protected activity were not factors in his determination
to select selectee for the subject position.
Regarding claim (e)(2), the record reflects that no one was selected
for the position of Administrative Assistant, Vacancy Announcement
No. OS-01-207.
Claim (f)
The Director stated that she was the Executive Officer responsible for
making sure that complainant's transfer to the warehouse took place.
The Director further stated that the Director of Office of Emergency
Preparedness (OEP Director) had complainant transferred to the warehouse.
Specifically, the Director stated that the OEP Director found that
complainant was to be transferred "because of National Security and when
she was notified of her proposal to remove her from service, she went
up and down this suite yelling profanities." The Director stated that
complainant was issued a Proposal to Remove for viewing and downloading
material of a sexual nature. The Director stated that as a result of
complainant's misconduct, the OEP Director "refused to bring her back into
this suite, but rather than continue on with the 'Proposal to Remove,'
she was given the option of going to the warehouse.� The Director stated
that complainant agreed to be transferred to the warehouse and signed
an agreement.
Further, the record reflects that on July 11, 2001, complainant signed an
Alternative Discipline Agreement in which she agreed in lieu of removal
from agency employment that she would not repeat the misconduct and be
transferred to the warehouse.
Claim (g)
The Director stated that while she was not responsible for making
decisions of hiring independent contractors, her division does the
paperwork to bring independent contractors on board. The Director stated
that " people from different divisions let us know that they have a need
for a temp and as I stated we process the paperwork." The Director stated
that no one made a request for complainant to do any administrative work.
The Director stated that she was not in a position to recommend or not
recommend complainant. The Director stated "I do not believe they would
have taken [Complainant] back because they felt she was not capable of
doing the job." Furthermore, the Director stated that she was told that
other employees would do their own administrative work because complainant
"made too many mistakes."
Claim (h)
The Recommending Official (RO) stated that she recommended the selectee
for the position of Program Analyst because she was the most qualified
candidate. RO further stated that the primary responsibility of the
subject position was to coordinate the National Disaster Medical System
(NDMS) annual conference. RO stated that the selectee provided support
to the conference for three consecutive years, and attended the conference
and participated in on-site management and coordination of the conference.
RO stated that the selectee was also detailed to her branch to work on
the NDMS conference from February 2002 through June 2002. RO stated
that during the detail, the selectee also "did the minutes, agendas and
developed materials for the monthly NDMS Directorate Staff meeting that is
chaired by the OER Director." RO stated that the selectee had "excellent
writing skills." RO stated that she did not recommend complainant for
the subject position because she did not have direct experience with
planning the NDMS conference or performing NDMS Branch duties. RO stated
that complainant was also a "poor writer." Furthermore, RO stated that
complainant's race, sex, age and prior protected activity were not factors
in her determination to recommend the selectee for the subject position.
As reflected above in our discussion of claims (a) - (h), the
Commission finds that there is sufficient evidence of record supporting a
determination that the agency articulated a legitimate, nondiscriminatory
reason for its actions. Moreover, complainant has not shown that the
agency's articulated reasons were a pretext for discrimination.
Accordingly, the agency's final order implementing the AJ's decision
finding no discrimination was proper and is AFFIRMED.
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
July 13, 2005
__________________
Date
1The record reflects that on March 1, 2003, the Federal Emergency
Management Agency (FEMA) became part of the Department of Homeland
Security. The record further reflects that complainant, an employee of
the Operations Branch of the Department of Health and Human Services,
became a FEMA employee when the Operations Branch was transferred
to FEMA.
2The record does not contain the agency's Motion for a Decision Without
a Hearing.
3The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.