0120112835
10-21-2011
Terentheia A. Sion, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Terentheia A. Sion,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120112835
Hearing No. 461-2010-00030X
Agency No. P-2008-0785
DECISION
On May 18, 2011, Complainant filed an appeal from the Agency’s April
15, 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. The Commission accepts the appeal pursuant to 29 C.F.R. §�
�1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order which found that Complainant failed to establish
that she was discriminated against as was alleged in the complaint.
ISSUES PRESENTED
The issues presented in this case are whether the EEOC Administrative
Judge (AJ) properly issued a decision without a hearing and whether
Complainant demonstrated that she was discriminated against on the basis
of her race when she was not temporarily reassigned to the Federal Prison
Camp in Pollack, Louisiana.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Unit Secretary, GS-6 at the Agency’s Federal Correctional Complex
facility in Pollack, Louisiana. Her duties included entering time
and attendance forms for the Unit Team Staff and entering various
inmate-related data on the Agency’s computer system, known as
“Sentry.” As of August 2008, Complainant provided secretarial
services at the United States Penitentiary (USP) housing unit for a
Unit Manger, three Case Managers and three Counselors and had an inmate
population of more than 500.
Also at that location was a Federal Prison Camp. C-1, a secretary,
provided secretarial services to the Camp Administrator, one Case Manager,
one Counselor and had an inmate population of 140. In August 2008,
Complainant inquired with the Camp Administrator about the possibility
of transferring from the USP and being temporarily assigned as the
Camp secretary during C-1’s extended active duty related absence.
Complainant was told by the Camp Administrator that the position was
not vacant and all selections would be made by the Warden should a
vacancy arise. Complainant then asked the Warden about temporarily
transferring from USP to the Camp secretary position. The Warden told
Complainant that it would not be a sound management decision because
her secretarial responsibilities at the USP were far greater than they
would be at the Camp. The record indicates that both Complainant’s
position and the Camp Secretary position paid the same amount and were
at the same pay grade.
The record indicates that the Camp had no secretarial assistance
from August 2008 until November 2008. By November 2008, the inmate
population at the Camp had doubled to 280 due to the completion of a
new housing unit. As such, the Camp Administrator asked the Warden for
secretarial assistance for one or two days per week in order to assist
with the increased workload. In response, a secretary who had recently
transferred to the facility was provided for a few days each week to
perform secretarial work for the Camp.
On December 5, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of race (African-American)
when:
1. On September 30, 2008, she became aware that her request for a
temporary assignment to the Federal Camp (FPC) was not approved.1
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). Complainant
timely requested a hearing. Over the Complainant’s objections,
the AJ assigned to the case granted the Agency’s June 11, 2010,
motion for a decision without a hearing and issued a decision without
a hearing on February 24, 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. Specifically,
the AJ found that, even assuming Complainant established a prim facie
case of race discrimination, the Agency articulated a legitimate,
non-discriminatory reason for its action, namely, that Complainant was
at a large facility that had more need for a secretary than the Camp.
The AJ noted that while it was understandable that Complainant would want
to transfer to a less demanding situation, the Agency’s position was
also understandable as they would have to put someone in her old position
had they allowed her to transfer. It was also noted that employees at
the Camp position were able to cover the secretarial duties, and when
help was needed it was only needed for a few days a week and was done
by someone’s whose position was not up and running. The AJ found that
Complainant failed to show pretext.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency provided
a brief in opposition of the appeal and argues that Complainant’s
appeal is meritless because the preponderance of the evidence supports
the AJ’s decision. The Agency asserts that Complainant failed to show
that racial animus was involved in this case.
STANDARD OF REVIEW
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). The Commission finds that there are
no genuine issues of material fact in this case. Therefore a decision
without a hearing was correctly issued.
ANALYSIS AND FINDINGS
In the instant case, we find that even if we assume arguendo that
Complainant established a prima facie case of discrimination based on
race, the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the Agency explained that Complainant was
tasked with multiple duties and it could not afford to lose a valued
worker to a less demanding position. In an attempt to show pretext,
Complainant indicated that other employees had been transferred to
different positions in the past. While this may be true, we find that
Complainant failed to show that the employees were similarly situated
to her. Moreover, we find that Complainant has not shown that her race
played any role in the decision not to transfer her. Accordingly,
we find that Complainant has not shown that the Agency’s articulated
legitimate, nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s final
order which found no discrimination.
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
_10/21/11_________________
Date
1 Complainant attempted to amend her complaint on three occasions (August
4, 2010, August 11, 2010, and January 26, 2011), all attempts were denied.
The first two motions were denied because Complainant did not properly
serve the motions on the opposing party and she attempted to connect
her denial of transfer claim to the transfer of two individuals into
completely different positions (Counselor and Unit Manger). The AJ found
that these matters were not like or related to her original allegation.
In her third motion, Complainant attempted to compare herself to an
Information Receptionist who was allowed to move to a unit secretary
position. The AJ again found that this allegation was not like or related
because approximately two years had elapsed from the time the employee
was transferred from the Information Receptionist position to the Unit
Secretary position, which was not located at the Camp. Complainant did
not contest the AJ’s decision not to amend her complaint; therefore,
this issue will not be addressed further in this decision.
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0120112835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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