0120113740
09-26-2013
Regina B. Jones, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
Regina B. Jones,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120113740
Hearing No. 550-2010-00272X
Agency No. ATF-2009-00459
DECISION
On August 1, 2011, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's June 21, 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industry Operations Investigator, GS-12, with the Agency's Bureau of Alcohol, Tobacco, Firearms, and Explosives, San Francisco Field Division, Dublin III, Dublin Field Office in Dublin, California.
On August 13, 2009, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her race (African-American), sex (female), age (53), and reprisal for prior protected EEO activity under Title VII and the ADEA when:
1. in July 2009 she received a mid-year performance evaluation of less than satisfactory, and her telework privileges were suspended;
2. in October 2009 she received an annual performance evaluation of less than satisfactory; and
3. she was not promoted to a GS-13 pay grade level during the relevant period.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). After the Agency moved for a decision without a hearing, which Complainant opposed and argued for summary judgment in her favor, the AJ issued a decision without a hearing finding no discrimination, which the Agency fully implemented.
The AJ denied Complainant's request to amend her complaint to broaden its scope to include issues of disparate impact1 and ongoing pattern and practice discrimination, and for a supplemental investigation thereon. He reasoned that Complainant's requests to amend her complaint and supplement the investigation commenced long after the Report of Investigation (ROI) was issued, after discovery closed, and she provided no good faith reason to explain her dilatory action, and did not demonstrate, in relevant part, that she met the requirements of a systemic action.
Regarding discovery, the AJ found that while he granted Complainant's request to engage, belatedly in limited discovery regarding the issues before him, she used the opportunity to endeavor to expand the scope of her case, as referenced above, and otherwise engage in a prolonged fishing expedition on matters not before him. The AJ also found that Complainant sought information which the Agency already produced during the discovery process or otherwise was obtained by her, was in her possession, or was contained in the report of investigation. The AJ found that the record was developed and not defective or deficient.
The AJ found the following: Complainant's first line supervisor was a 56 year old Chinese male who directly supervised Complainant's Industry Operation Investigator co-workers, including Comparison 1, a 75 year old Caucasian male; Comparison 2, a 54 year old Filipina female, Comparison 3, a 46 year old African American female; and Comparison 4, a 48 year old African American female.
In October 2008, the above first line supervisor gave Complainant an annual performance appraisal of less than satisfactory, a matter that was not included in her complaint. Thereafter, she got a mid-year appraisal of in July 2009, and year end appraisal in October 2009, with less than satisfactory ratings. In May 2009, pursuant to [formal written] Agency policy, Complainant's first line supervisor advised that because she failed to maintain a satisfactory performance evaluation based on her 2008 performance appraisal she could no longer participate in the telework program [effective June 22, 2009].2 Complainant's first and second line supervisors explained that Complainant was not promoted because of her documented performance shortcomings.
The AJ found that Complainant did not make out a prima facie case of reprisal discrimination regarding matters which occurred in May 2009 and before because she did not initiate EEO counseling on this case until May 29, 2009. In response to the Agency's motion for a decision without a hearing Complainant submitted a declaration that on July 21, 2008, she informed her first line supervisor of the "discrimination problems" she was having with him, and if they could not be resolved, she would file "charges of discrimination" against him. In support thereof, she cited a letter by her first line supervisor dated July 22, 2008, which referenced a July 21, 2008, meeting and advised Complainant about the availability of the Employee Assistance Program (EAP). The AJ found that Complainant's reliance on this letter was misplaced because nothing therein referred to protected EEO activity. The AJ found that even if Complainant's first line supervisor was aware of EEO activity by Complainant, the Agency was still entitled to a judgment finding no reprisal discrimination as a matter of law.
Regarding Complainant's mid-year and annual appraisal ratings in 2009, the AJ recounted that the first line supervisor gave a number of specific reasons therefore, including: (1) Complainant's failure to plan her work properly, taking an inordinate length of time to conduct compliance reviews and not adhering to the standard guideline covering the average length of time which an Industry Operations Investigator should devote to each compliance inspection; (2) her allocation of an unreasonable amount of time for pre-planning and her inability to properly schedule her work assignments; (3) the rejection of 12 inspection reports authored by Complainant during the time period for their lack of clarity, factual omissions, and editorial and grammatical errors; and (4) her failure to properly coordinate her work with her co-investigators. The AJ found Complainant's performance shortcomings were well documented.
The AJ found that Complainant's performance deficiencies were also corroborated by her co-workers, referring to two them. Comparison 2 stated Complainant had similar performance problems under her predecessor supervisor, and on a compliance inspection during the 2009 performance period they worked on Complainant did not appear until days after the inspection was scheduled and she was the lead. She also wrote that Complainant is not proactive, takes too long to do her work, does not interact well, and did not coordinate assignments they worked on together. Comparison 1 stated Complainant used an incorrect official form during an inspection, resulting in the licensee not having a valid explosives permit (suggesting this was unknown to the licensee), and did not properly perform another explosives permit inspection, contrary to the regulations and representing a significant public safety issue.
The AJ found that the comparative evidence refuted Complainant's allegation that her performance appraisals were discriminatory. The AJ noted that while the first line supervisor rated Complainant less than fully satisfactory during the rating period in question, he rated others within her same protected classes (Comparisons 1, 2, 3 and 4) as exceeding fully satisfactory or outstanding, including rating Comparison 4, a 48 year old African American female outstanding.
The AJ found that the denial of telework and not getting the promotion resulted from Complainant's performance.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Complainant argues that summary judgment was not appropriate because the record was inadequately developed. She points to discovery she requested to which the Agency did not respond or fully respond and the AJ did not order such response, and argues that the ROI was insufficient. While Complainant's arguments about lack of evidence cover much ground, her most cogent arguments were that Exhibit 13 of the ROI, which contained summary reports on what appear to be Complainant and comparisons 1 - 4 productivity on inspections during the relevant period is largely unreadable, and her discovery requests for all documents for 2008, 2009, and 2010 that pertain to inspections performed by Industry Operations Inspectors, including reports thereon, as well as inspection reports and documents pertaining thereto that first line supervisor returned for alleged deficient work. The October 2008 to 2009 time period was relevant.
We note that Complainant submitted numerous summary and assignment reports for individual inspections, in relevant part, for Comparisons 1 - 4, and created a chart summarizing productivity, i.e., how many hours spent on each inspection, and whether progress reports on delayed ones were submitted. Complainant does not state whether she obtained or had access to all the reports.
As an initial matter, we find that the AJ did not abuse his discretion in denying Complainant's motion to compel discovery. As stated by the AJ, Complainant attempted the use the discovery to belatedly expand the scope of her case, and already had some of what she was requested in her possession. Also, evidence about promotions by management other than Complainant's first and second line supervisors would have little value in light of the fact that Industry Operations Inspectors on Complainant's team with her protected bases of race, sex, and age were recently promoted from GS-12 to GS-13 -- Comparisons 1 and 2 in July 2009 by Complainant's first line supervisor, and Comparisons 3 (in March 2007) and 4 by Complainant's predecessor supervisor. Further, Complainant's first line supervisor stated he never promoted anyone whose performance appraisal rating was less than fully successful, and her second line supervisor indicated that no one on Complainant's team was promoted who had a rating of less than fully successful.
In Complainant's appraisal, her first line supervisor wrote that during the performance period3 she completed 40 compliance inspections for a total of 40 assignments, and 11 or 25% of them took more than 40 hours to complete, beyond the standard. Complainant counters that Comparisons 1 and 2 also had inspections which took more than 40 hours to complete. She submitted a chart she created from summary and assignment reports showing that Comparison 1 had 11 reports with a target of 40 hours go over, and Comparison 2 had three such reports. The Agency did not address the accuracy of Complainant's numbers, or explain why negative numbers were cited in Complainant's appraisal, but not Comparisons 1 and 2. Comparison 3 also missed three 40 day targets, according to Complainant's chart. All the above numbers refer to completed inspections.
Even taking account of the above, we find that there are no genuine issues of material fact regarding the appraisal matter. As an initial matter, we disagree with the AJ's finding that Complainant did not make out a prima facie case of reprisal discrimination. While we agree with the AJ that the document Complainant cited to support that she engaged in EEO opposition activity on July 21, 2008, did not support this, Complainant declared that she told her first line supervisor on July 21, 2008, that he may file "charges of discrimination." Moreover, an EEO counselor's report shows that Complainant initiated EEO counseling on November 12, 2008, about a poor appraisal by her first line supervisor, which she withdrew in early December 2008. Complainant's first line supervisor stated prior to Complainant contacting an EEO counselor on the instant complaint, he was aware of her EEO activity, and her second line supervisor stated the same, adding he believed she contacted an EEO counselor sometime in 2008 regarding performance, and withdrew the matter.
In rating Complainant negatively, the first line supervisor cited a number of other factors. He explained, for example, that Complainant allocated an unreasonable amount of time for pre-planning inspections, charging a high number of hours prior to the on-site visit, giving examples of inspections where she charged 8, 12, 12, 16, 19, 22, and 26 hours doing this. While the record does not contain documented data on the pre-planning times of Comparisons 1 - 4, and Complainant does not indicate whether she has such information, Comparison 1 stated pre-investigation on application for inspections should take one to two hours, and for compliance inspections no more than four hours; Comparison 2 stated pre-planning should take two to three hours and involves reading the file, doing some research, and printing forms and planning, and Comparison 3 stated it takes a couple of hours to eight hours.
In Complainant's appraisal the first line supervisor indicated that he returned a dozen inspections to Complainant for further clarification, missing relevant facts, formatting, typing, grammar, and rewrites. He went into detail about quality deficiencies on specific inspections, including failure to document that there was a change in control of a corporate ownership, failure to verify the Daily Summary of Magazine Transactions, using an incorrect trade name which can cause problems in a warning conference or revocation hearing, and conducting a firearms application inspection by telephone and facsimile when inspections are to be conducted face to face when possible. Comparison 1 and 2 had no inspections returned, and Comparison 3 had three returned. A reading of the appraisals suggested quality was a significant matter.
The first line wrote in Complainant's appraisal about the incident where she was the lead investigator on an inspection with a large inventory, and showed up three days late, forcing Comparisons 1 and 2, who were assisting, to conduct most of the large inventory inspection, and then not thanking them. Comparison 2 wrote the firearms inventory was in the 2,500 range, Complainant did not call once to check on how things were going, and wrote a report taking credit for the inventory.
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For a 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
As noted above, Complainant made out a prima facie case of reprisal discrimination. We will also assume, for purposes of analysis, that she made out prima facie cases of race, sex and age discrimination.
The Agency explained that it rated Complainant less than fully successful in 2009 based on her performance, that her telework was revoked due to deficient performance on her 2008 appraisal, and she was not promoted due to deficient performance. Complainant did not file an EEO complaint regarding the 2008 appraisal, and there is no indication it was overturned.
In an attempt to show pretext, Complainant argues that others performed like her and received positive appraisals. While Complainant submitted evidence, which taken in a light most favorable to her showed some elements of this regarding timeliness of completing inspections as well as submitting progress reports; other aspects of Complainant's performance management cited, recounted above persuasively show it assessed her performance as less than fully successful for legitimate, nondiscriminatory/non-retaliatory reasons. Moreover, as found by the AJ, Complainant's first line supervisor rated other Industry Operations Inspectors on Complainant's team who were in her protected groups of age, race and sex as exceeds fully successful and outstanding, making it unlikely these bases were factors in Complainant's 2009 appraisals.
We agree with the AJ's finding that Complainant's telework was revoked and she was not promoted because of her deficient performance, not reprisal or discrimination.
The Agency's final order is AFFIRMED.
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
September 26, 2013
__________________
Date
1 The AJ wrote that Complainant asked to amend her complaint to raise class claims. On appeal, she clarifies that she was seeking to develop evidence of discrimination, not file a class action.
2 On July 7, 2009, pursuant to Complainant's request, she was advised by her second line supervisor that telework could still be granted to her on a case by case basis when, for example, toward the end of the day she was in the field, was ready to return to desk work, and was closer to her home than the office.
3 In the narrative part of all the appraisals for Complainant and Comparisons 1 - 4, the supervisor wrote that the review period was October 1, 2008 to September 30, 2009. Accordingly, we will use this period.
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0120113740
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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