0120090642
05-08-2009
Theresa Schiavo, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Theresa Schiavo,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120090642
Hearing No. 530-2008-00125X
Agency No. GSA-07-R3-OAD-TS-09
DECISION
On December 2, 2008 complainant filed an appeal from the agency's final
order, dated November 6, 2008, 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 appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
During the relevant time, complainant worked as a Congressional Service
Representative (CSR), GS-12, in the Program Services Division of the
agency's Mid-Atlantic Region headquarters located in Philadelphia,
Pennsylvania. There are nineteen CSR positions located throughout
the country. Most of these positions were upgraded, to GS-13, prior to
complainant's selection. Only complainant and one other individual have
not been upgraded.
In March 2007, complainant requested an upgrade to GS-13. Complainant's
supervisor, the Director of Finance and Acquisition Policy, denied the
request. The supervisor found that the GS-13 position requires that
30% of the work concerns the national database, and that complainant
was not performing sufficient levels of those duties. As a result,
complainant requested a desk audit. In April 2007, the Human Resources
specialist who conducted the audit concluded that complainant's position
was properly graded at GS-12.
Believing that the denial of her upgrade from GS-12 to GS-13 was
discriminatory, complainant contacted the EEO office. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
complainant filed a formal complaint based on sex (female)1 and national
origin (Italian).
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. On August 12, 2008, the agency's filed a motion
on August 12, 2008, for a decision without a hearing. According to the
AJ assigned to the case, the complainant did not object. The agency's
motion was granted, and on October 20, 2008 the AJ issued a decision
without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case,
because she failed to show that she was treated differently than similarly
situated males or non-Italian employees. The AJ found that complainant
did not cite an appropriate comparator with duties similar to her own,
that was promoted. One of the individuals cited handles problems with the
national data base, which complainant does not. Further, the individual
cited by complainant is of the same protected classes.
Moreover, the AJ observed that the agency presented a legitimate,
non-discriminatory reason for its decision not to promote complainant to
the GS-13 level: to qualify for the GS-13 level, complainant needed to
perform at least 30% national duties, and complainant herself estimated
that she performed such duties only between 2% and 8% of the time.
Finally, complainant did not offer evidence of pretext. Consequently the
AJ found no discrimination based on sex or national origin.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
ANALYSIS AND FINDINGS
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. (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.
On appeal, complainant argues that she did submit a response to the
agency's motion for a decision without a hearing. Specifically, she
contends that her reply was hand-delivered to the Chief AJ's office.
In support of her contention, she submits a copy of an e-mail to an
agency employee which included within it the "memo to Judge Flynn".
In the August 20, 2008 e-mail complainant states that she sent the
document to the AJ "by Registered Mail today."
The statement to the AJ lists several points. For example, complainant
asserts that when complainant approached her supervisor about the upgrade
three years earlier, he argued that not only did she not deserve it
but neither did the other CSRs. According to complainant, because 98%
of the CSRs are female, this statement was evidence of discrimination.
Complainant contends that her supervisor "treats me differently," citing
an incident when her FOIA work flow increased and he denied that it had
and even stated it had lessened.
In her appeal statement, complainant requests a hearing. However,
the Commission finds that the AJ properly granted the agency's motion
for summary judgment. Although the record does not establish whether or
not complainant's purported reply was received by the AJ, the Commission
is not persuaded by the document. Complainant has not established that
there was a genuine issue of material fact. We find that the AJ properly
issued a decision without a hearing.
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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 Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
As noted above, complainant was not upgraded to the GS-13 level because
her duties did not justify it. The position description for her job, a
supplemental list of her duties provided by complainant, and observations
by the HR official resulted in his finding that complainant's position was
properly classified at GS-12. When compared to her co-worker, who shared
the same supervisor, the co-worker's position description stated she was
responsible for the Congressional Services Inventory. Contrastingly,
complainant admits she does not have such duties. Complainant argues that
her "national work" (i.e. bi-weekly conference calls on national issues,
attending annual CSR conferences) and FOIA assignments should entitled
her to the GS-13 level. Her contentions, however, to not establish that
she was denied the upgrade due to her national origin or sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
May 8, 2009
__________________
Date
1 The formal complaint only contained the basis of national origin,
but the basis of sex was added when complainant raised it during the
investigation.
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0120090642
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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