0120082660
02-18-2011
Tiffney L. Griner-Esslinger, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Tiffney L. Griner-Esslinger,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 01-2008-2660
Hearing No. 410-2008-00048X
Agency No. HHS-CDC-0039-2007
DECISION
On May 23, 2008, Complainant timely filed an appeal from the Agency's
April 10, 2008, 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.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ)
properly issued a decision without a hearing; and (2) whether the
AJ properly found that Complainant was not subjected to unlawful sex
discrimination or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a GS-12 Contract Specialist at the Agency's Procurement and Grants
Office facility in Atlanta, Georgia.
On January 17, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of sex (female) when:
1. On December 2, 2006, the Agency denied her the opportunity to
participate in the telecommute program.
On February 28, 2007, Complainant amended her complaint to further allege
that the Agency retaliated against her for engaging in EEO activity
under Title VII when:
2. On February 20, 2007, the Acting Director (Director) verbally denied
her request to participate in the telecommute program.
Additionally, Complainant alleged that the Agency engaged in sex
discrimination and retaliation when:
3. On March 12, 2007, the Agency issued Complainant an annual evaluation
rating of "Minimally Successful," which made her ineligible to receive
a within-grade increase; and
4. In July and August 2007, Complainant was excluded from meetings that
dealt with contracts she handled as part of her official duties.
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. On February 25, 2008, the Agency filed a
motion for a decision without a hearing, to which Complainant responded
in opposition on March 12, 2008. In a decision dated March 28, 2008, the
AJ granted the Agency's motion and found no discrimination on claims 2,
3, and 4. Additionally, the AJ dismissed claim 1 on the basis that it
was initiated by untimely EEO counselor contact. The Agency subsequently
issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision
without a hearing in favor of the Agency. Complainant argues that
she established a prima facie case by showing that the Director was
interviewed by an EEO Counselor regarding her EEO complaint on January 4,
2007, before he denied her request to telecommute. Complainant further
contends that she should have been approved for telecommuting because
she received a "Fully Successful" rating for 2005. Complainant further
argues that she proved that she was subjected to sex discrimination on her
March 2007 evaluation because her supervisor was not sufficiently familiar
with her work performance in 2006, and disliked Complainant because she
is a single mother. The Agency did not submit a statement on appeal.
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 EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Chap. 9, � VI.B. (Nov. 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").
ANALYSIS AND FINDINGS
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). We find that the AJ properly issued a decision without a hearing
because Complainant failed to show that a genuine issue of material fact
or credibility existed.
Disparate Treatment
Generally, claims of disparate treatment are examined under
the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). For instance,
to establish a prima facie case of reprisal, Complainant must show that
(1) she engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the Agency; and (4) a nexus exists between her protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is her obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16
(1983).
In this case, we assume without so finding that Complainant established
a prima facie case of sex discrimination and reprisal.1 Nevertheless,
we find that the Agency provided legitimate, non-discriminatory reasons
for the alleged actions. Specifically, the Director stated that he
denied Complainant's request to telecommute in February 2007 because of
Complainant's poor work performance and the former Director's denial of
Complainant's request to telecommute. The Agency further stated that
Complainant was rated "Minimally Successful" because she only closed,
at most, three contracts from May 15 through December 31, 2006, and was
the subject of two written customer service complaints, although she had
extensive experience in closing contracts. The Agency also stated that
Complainant was excluded from meetings in July and August 2007, because
the meetings concerned the Tiger Team's progress, and Complainant was
not on that team.
Complainant contends that she should have been approved for telecommuting
in February 2007 because she received a "Fully Successful" rating for
2005. However, the record reveals that Complainant received a "Minimally
Successful" rating for calendar year 2006, which Complainant failed
to sign when it was presented to her on March 12, 2007. Exhibit 10F,
p. 1. Moreover, Complainant's supervisor stated that she advised the
Director who denied Complainant's request for telecommuting on the basis
of Complainant's poor work performance. Exhibit 10, p. 3.
Complainant further argues that she proved that she was subjected to sex
discrimination on her 2006 evaluation because her supervisor was not
sufficiently familiar with her work performance in 2006, and disliked
Complainant because she is a single mother. Complainant's supervisor
responded that she consulted with other management officials and
Complainant's Team Leader, who informed her of Complainant's lack of
productivity. Exhibit I, p. 2. To the extent that Complainant contends
that her supervisor harbored animus against her because she is a single
mother, we note that parental status and marital status are not protected
bases under EEO regulations, and Complainant has not established an
inference of sex discrimination by showing that single fathers were
treated more favorably than she was treated under similar circumstances.
Thus, we find that Complainant failed to provide any evidence from which a
reasonable fact-finder could conclude that the Agency's non-discriminatory
reasons were pretext for unlawful discrimination. Consequently, we find
that the AJ properly found no discrimination or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency's final order.
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 (Nov. 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
February 18, 2011
Date
1 We decline to review the AJ's dismissal of claim 1 because Complainant
does not contest the dismissal on appeal. Also, we will not address
Complainant's appellate arguments concerning the establishment of a prima
facie case of discrimination because we assume for the sake of argument
that she established a prima facie case of discrimination.
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01-2008-2660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
01-2008-2660