01a45862
01-24-2005
Sheila L. Lay, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Sheila L. Lay v. Department of Defense
01A45862
January 24, 2005
.
Sheila L. Lay,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A45862
Agency No. Cleve-AC-02-010
Hearing No. 220-A3-5065X
DECISION
Complainant 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. Although the
Commission notes that the appeal is untimely because it was filed beyond
the thirty day time limit set by 29 C.F.R. � 1614.403(d), the Commission
exercises its discretion to evaluate the merits of the appeal.<1> For
the following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Staff Accountant (GS-510-12)
at the agency's Defense Finance and Accounting Service, Cleveland, Ohio
facility, filed a formal EEO complaint on June 28, 2002, alleging that
the agency created a hostile work environment and discriminated against
her in reprisal for prior EEO activity (arising under Title VII) when
management failed to assign to her meaningful work, inform her properly
of assignment duties and deadlines, and gave her low performance ratings.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On April 8, 2004, the agency filed a Memorandum in Support
of a Finding of Fact and Conclusion of Law Without a Hearing.<2> In
response, on April 20, 2004, complainant filed a Memorandum in Opposition
of (sic) a Finding of Fact and Conclusion of Law Without a Hearing.
Upon reviewing both briefs, the AJ issued an Order finding no material
facts in dispute. See Order, dated May 12, 2004. In that Order the AJ
acknowledged that complainant raised �recent discoveries� in regards
to her case, but he instructed her to contact an EEO Counselor about
the possibility of filing another complaint. See id. On May 13, 2004,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of reprisal, and therefore found no discrimination. The agency issued
its final order implementing the AJ's decision on June 7, 2004. However,
the AJ erred in his rationale. He applied the analysis commonly used
to determine whether a claim was properly stated instead of applying
a prima facie case analysis. The AJ found that complainant failed to
prove that she was an �aggrieved employee� with respect to a term,
condition or privilege of employment.<3> See Decision, at 14-15.
The proper inquiry, however, at this stage in the proceedings should
have been whether complainant's alleged facts raise �an inference of
discrimination.� Furnco Constr. Co. v. Waters, 438 U.S. 567, 577 (1978).
Applying the proper analysis (see infra), the Commission finds that
complainant established a prima facie case of retaliation. Nevertheless,
the Commission finds that the AJ's analytical error is harmless because
upon a de novo review of the record, the complainant failed to prove by a
preponderance of the evidence that the agency's non-discriminatory reason
for its actions were a pretext to hide unlawful retaliation (see infra).
On appeal, complainant contends that the AJ erred when (1) he acted on
the agency's motion for summary judgment which had been filed beyond
the 15 day period set forth in the AJ's Acknowledgment Order, and (2)
he failed to take into account the �new discoveries� that complainant
raised in her opposition to the agency's motion for summary judgment,
and thereby improperly fragmented complainant's claims.
The Commission finds that the issuance of a decision without a hearing
was appropriate, as no genuine dispute of material fact exists.
As to complainant's first argument on appeal, the Commission finds
that although the agency may have been late in filing its motion for
summary judgment, this again was a harmless error. Even if we disregard
the agency's motion,<4> the Commission finds that the AJ could have,
on his own initiative, issued a decision without a hearing given that
complainant failed to establish that the agency's reasons for its actions
were pretextual. As the AJ could have issued a summary decision sua
sponte based on the evidence on the record, the Commission finds no
reason to disturb the decision on this basis.
As to complainant's second argument on appeal, the Commission again finds
this to be an inadequate basis on which to reverse the AJ's decision.
Complainant argues that the AJ impermissibly allowed her claim to become
fragmented when he disregarded the �new discoveries� that she set
forth in her opposition to the agency's motion for summary judgment,
and instructed her to seek EEO counseling and file a new complaint.
Ultimately, complainant did as the AJ instructed (see Agency Complaint
No. DFAS-IN-CR-04-079). The agency rejected that complaint on grounds
of untimeliness, failure to state a claim, and duplication.<5> The
complainant now suggests that had the AJ accepted the �new discoveries,�
he would have found material issues in dispute that would have allowed
her claim to survive to a hearing. The Commission, however, disagrees
with complainant. The �new discoveries,� which complainant argues
shed light on her retaliation claim, in fact say nothing new. A review
of complainant's brief in opposition to summary judgment reveals that
complainant did not raise any new contentions or bases of discrimination
as she claims on appeal to have done.
Complainant merely reiterates the claims stated in this her original
complaint. Specifically, complainant stated that she discovered that
different rating standards apply to some of her co-workers; that she did
not receive credit for work that she performed, and that she was assigned
administrative work whereas her co-workers were given technical tasks.
She also provided �evidence� that purported shows that she was not
given clear instructions or deadlines on assignments. See Memorandum in
Opposition of a Finding of Fact and Conclusion of Law Without a Hearing.
By contrast, in the complaint she subsequently filed, complainant used
the same evidence to allege that the agency discriminated against her
on the bases of sex, race and in reprisal for prior EEO activity arising
under Title VII. See Complaint No. DFAS-IN-CR-04-079.
These facts beg the question: why did complainant not raise these new
bases of discrimination to the AJ when she presented the �new discoveries�
to him? In her opposition to summary judgment, she said nothing about
discrimination on the bases of race or sex. Had she raised these new
contentions before the AJ, the AJ may have allowed these arguments on to
the record. However, she failed to do so, and provided no explanation
for the failure. The reason the AJ disregarded the �new evidence� was
that, as it merely repeated the same allegations as in her complaint,
it did not show that material issues were in dispute.
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, the issuance of
a decision without a hearing is not appropriate. In the context of an
administrative proceeding, an AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition.
As stated above, the Commission finds that the issuance of decision
without a hearing was correct, as no genuine issue of material fact
exists. Yet, the Commission disagrees with the AJ in finding that
complainant did establish a prima facie case of reprisal discrimination.
In a reprisal claim, according with the burdens set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792(1973), 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), complainant
may establish a prima facie case of reprisal by showing that: (1)
she engaged in a protected activity; (2) the agency was aware of her
protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (September 26, 2000). A prima facie case is
not the equivalent of a finding of discrimination. It is simply proof
of actions taken by the agency from which discriminatory animus may be
inferred, because it is more likely than not that those actions were
founded on an impermissible consideration. Furnco, 438 U.S. 567.
Proper analysis does not end by proving a prima facie case. Doing so,
merely shifts the burden to the agency �to articulate some legitimate,
nondiscriminatory reason� for its employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). The agency must provide
evidence that would, if believed, be legally sufficient to justify a
judgment for complainant. Once the agency does so, the burden shifts
back on to complainant to �demonstrate that the proffered reason was not
the true reason for the employment decision. This burden now merges
with the ultimate burden of persuading the court that [complainant]
has been the victim of intentional discrimination.� Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In other words,
complainant must then prove by a preponderance of the evidence that the
agency's reasons were a pretext to mask unlawful discrimination.
Here, it is undisputed that complainant engaged in protected EEO activity.
Similarly, it is clear that some, but not all, of complainant's
supervisors whom she accuses of unlawfully discriminating knew of
the protected activity. Nevertheless, assuming that they all knew,
complainant succeeds in proving her prima facie case because she shows
that the agency treated her adversely very soon after she engaged in the
protected EEO activity. Contrary to what the AJ's analysis suggests, the
Commission focuses on whether complainant suffered �adverse treatment,�
not an �adverse action.� �The statutory retaliation clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity.� EEOC Guidance on Investigating, Analyzing Retaliation Claims,
EEOC Directives Transmittal No. 915.003 (May 20, 1998). There is no
requirement that the adverse [treatment] materially affect the terms,
conditions, or privileges of employment. Complainant sufficiently
established that the alleged meaningless work assignments, inadequate
work instructions, and poor evaluations all amounted to adverse treatment.
To this, the agency articulated a legitimate, nondiscriminatory reason for
its action, stating that complainant did not complete certain assigned
projects, and as such did not maintain constant productivity levels.
Further, the agency states that it gave complainant the same assignment
instructions, many of which verbal, as it gave other employees.
As explained above, the agency articulated a nondiscriminatory reason
for its action so the burden shifts back on complainant to prove that
the proffered reason is pretextual. Here is where complainant fails.
She did not prove pretext by a preponderance of evidence. Furthermore,
complainant did not show that the agency's actions were motivated by
retaliatory animus. As such, complainant's claim fails.
Accordingly, the Commission AFFIRMS the final agency order accepting
the AJ's decision finding no discrimination.
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
January 24, 2005
__________________
Date
1 Section 1614.403(d) of Regulations state
that a complainant has thirty days from the date he or she receives the
final agency order to appeal the agency's decision. Here, the agency
issued its order on June 7, 2004. Complainant filed her appeal to the
Commission on September 1, 2004. Clearly, this is beyond the regulation
time frame and normally the Commission would not accept such an untimely
appeal.
2 The Commission notes that the agency failed to submit a copy of
this brief. The agency is reminded of its obligation to transmit to
the Commission the complete case file when a matter comes to it on appeal.
3 In dicta, the AJ also determined that complainant had failed to
establish a claim of a hostile work environment by her senior supervisor.
4 As stated above, the Commission necessarily must disregard the motion
as a copy is not in the record.
5 Complainant filed an appeal on this other matter as well, which the
Commission is concurrently evaluating. See Lay v. Dep't of Defense,
EEOC Appeal No. 01A45908.