0120120117
03-15-2013
U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations ZINA D. COFFEE, COMPLAINANT, v. JOHN M. MCHUGH, SECRETARY, DEPARTMENT OF THE ARMY, AGENCY.
U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
ZINA D. COFFEE, COMPLAINANT,
v.
JOHN M. MCHUGH, SECRETARY, DEPARTMENT OF THE ARMY, AGENCY.
Appeal No. 0120120117
Hearing No. 450-2011-00148X
Agency No. ARTCDOM10JAN0483
March 15, 2013
DECISION
On October 3, 2011, Complainant filed an appeal from the Agency's September 1, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intern or "trainee", Human Resources Specialist, GS-7, at the Civilian Personnel Advisory Center (CPAC) in the Red River Army Depot in Texas.
Complainant has engaged in prior protected EEO activity. Specifically, on August 7, 2008, Complainant received an EEO judgment in her favor from an EEOC Administrative Judge (AJ) who found that Complainant had been subjected to ongoing harassment on the bases of her race and sex, and management failed to take any corrective action.1 All of the management officials involved in this current complaint were aware of Complainant's previous EEO activity.
Around October 2009, Complainant's supervisor gave Complainant a performance rating of a Level 4 (Exceeds Expectations) on her 2009 National Security Personnel System (NSPS) Annual Performance Appraisal. When the supervisor sent the performance rating to the Chief of Staff for review and approval, he returned the performance appraisal to the supervisor. The Chief of Staff told the EEO investigator that he returned the appraisal for further justification of the high score.
Complainant's supervisor told the investigator that she believes "that the only reason [Complainant's] rating was marked down was because of her prior [EEO] activity." The supervisor stated that the Chief of Staff told her he did not want further justification and it was not up for discussion, he just wanted the score changed and would not explain to her his reasons. The supervisor stated that she asked the Chief of Staff for further clarification on his disagreement with the rating, and the he allegedly replied that he did not disagree with the narrative of Complainant's performance, he just didn't like the score.2 Ultimately, the supervisor changed the appraisal rating downward because the Chief of Staff would not move the appraisal along otherwise.
On February 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on January 6, 2010, she was told by her supervisor that her 2009 National Security Personnel System (NSPS) Annual Performance Appraisal was downgraded from a Level 4 (Exceeds Expectations) to a Level 3 (Valued Performer) by the Chief of Staff at the Red River Army Depot.
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 Complainant's objections, the AJ assigned to the case granted the Agency's June 30, 2011, motion for a decision without a hearing and issued a decision without a hearing on July 4, 2011. The AJ found that Complainant failed to establish a prima facie case of retaliation, and the Agency articulated legitimate, nondiscriminatory reasons for its actions. 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.
ANALYSIS AND FINDINGS
Summary Judgment
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. Pan 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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).
After a careful review of the record we find that the AJ's issuance of a decision without a hearing was appropriate because no genuine dispute of material fact exists. However, we find that the AJ erred in finding in favor of the Agency, as the record reflects by a preponderance of the evidence that Complainant was subjected to reprisal for her prior protected EEO activity, as discussed below.3
Reprisal
Complainant alleged that she was subjected to reprisal for her prior protected EEO activity when her performance rating was downgraded. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs. EEOC Request No. 05960473 (Nov. 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 the 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 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury. EEOC Appeal No. 01A35231 (Jan. 25, 2005). Once Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the antiretaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Here, Complainant established that she engaged in protected activity and that all management officials involved in this complaint were aware of the protected activity. Complainant also established that she was subjected to adverse treatment when the Chief of Staff ordered the supervisor to lower Complainant's performance evaluation to a 3. We note that the AJ erred in her analysis when she found that Complainant did not establish a prima facie case because she failed to establish that she was treated differently than similarly situated individuals outside of her protected class. This is not the proper prima facie case analysis for a claim of reprisal discrimination, where we instead analyze how an individual person was adversely treated rather than solely comparing her to similarly situated individuals, and whether or not that individual's adverse treatment was based on their prior protected EEO activities.
Additionally, the evidence in the record is sufficient to establish that there was a nexus between the protected EEO activity and the lower performance rating. Complainant's compensatory damages claim was on appeal with the Commission until March 2009, and her appeal for attorney's fees was active with the Commission until November 2009. This latter appeal was still pending at the time the Chief of Staff ordered that Complainant's appraisal be lowered. Additionally, temporal proximity is not the only way one may establish that a nexus existed. Walton v. National Guard Bureau, EEOC Appeal No. 0120072925 (July 11, 2012) (Despite a three year difference between the protected activity and the adverse action, there was evidence in the record that established that the supervisor was motivated by reprisal towards Complainant's previous protected EEO activity). Complainant's supervisor's testified that she believes the Chief of Staff ordered the rating to be changed because of Complainant's previous EEO activity.4 Additionally, the supervisor's testimony described an ongoing bias from upper management against Complainant ever since she engaged in the previous EEO activity. For example, Complainant's supervisor stated that when she first allowed Complainant to transfer to her office, Complainant's first EEO complaint was active at the time and brought with her "a lot of baggage." The Commander was angry that the supervisor allowed the transfer and allegedly said to the supervisor "you didn't do what I think you did," "I can't believe you did that," and "if you hadn't [accepted her transfer, the Agency] would have settled for [less]." Complainant's supervisor also stated that because of her previous EEO activity, upper level management will always view Complainant as a villain and a mediocre employee.
Once Complainant establishes her prima facie case of reprisal discrimination, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. The Chief of Staff stated that he returned Complainant's appraisal to the supervisor because it was poorly written, the score was not justified by the writing, and it was high for Complainant's few years of service and her position as a trainee.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her prior protected EEO activity.
We note that an Agency has broad discretion to carry out personnel decisions, such as performance evaluations, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Stiles v. Dep't of Transp., EEOC Request No. 05910577 (June 27, 1991). Here, we find that there is evidence in the record that there was unlawful motivation in the Agency's decision to lower Complainant's rating.
Complainant asserted that she deserved a Level 4 performance rating because she was the person everyone came to for help and advice, she corrected her coworkers' errors, and she was the only person in her organization that had 14 extra duties. Additionally, The Chief of Staff returned to Complainant's supervisor five appraisals for employees under her supervision, and three out of the five employees had prior protected EEO activity.
Complainant's assertions are supported by the statements of her supervisor. Complainant's supervisor stated that Complainant deserved a Level 4 rating, and that the Chief of Staff's articulation that trainees such as Complainant cannot get such a high rating is false, as many trainees achieve a Level 4 rating. The supervisor also stated that the Chief of Staff told her that he did not disagree with the narrative of Complainant's performance; he just didn't like the score. This is a contradiction of the Chief of Staff's assertion that the evaluation's narrative was poorly written.
Complainant's supervisor stated that she was the only person who observed Complainant's performance on a daily basis, she was the best judge of Complainant's performance,5 and that the Chief of Staff had no knowledge about Complainant's performance because they never discussed Complainant's performance. Complainant's supervisor stated that Complainant outperformed her other staff, she was training other staff members, she learned faster than other staff, she took more initiative than other staff, and she was "running rings" around the Specialists. Complainant's supervisor stated, "In my judgment, she was well above what was required of a GS-7 tech. She was doing stuff that I would have expected my GS-12 to do." Again, the supervisor stated that she believed the Chief of Staff ordered the rating to be lowered because of Complainant's previous EEO activity, and that there was an overall retaliatory animus towards Complainant from upper management because of her previous successful EEO complaint.
We note that the Agency had the opportunity to question Complainant's supervisor about her statements to the investigator. The transcript from the fact finding conference reveals that an Agency representative was present when the supervisor testified under oath to the investigator, and the representative "cross examined" the supervisor. The Agency representative did not question the supervisor about the statements discussed above. As a result, a hearing is not necessary to further examine the supervisor.
After a review of the entire record, we find that Complainant established by a preponderance of the evidence that she was subjected to reprisal when the Chief of Staff ordered that her performance rating be lowered.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, because a preponderance of the evidence in the record establishes that Complainant was subjected to reprisal for her prior protected EEO activity. Additionally, we REMAND this matter to the Agency to take remedial action as described below. The Agency is ordered to comply with the order below.
ORDER
There agency is hereby ORDERED to take the following remedial action:
1. The Agency shall immediately cease and desist from all discriminatory conduct directed at Complainant, and ensure that Complainant is no longer subjected to retaliation for her participation in protected EEO activity. Further, the Agency shall ensure that others at the facility are not subjected to discrimination and/or retaliation.
2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall change Complainant's 2009 National Security Personnel System (NSPS) Annual Performance Appraisal to reflect a performance rating of a Level 4 (Exceeds Expectations). Additionally, the Agency must calculate and pay to Complainant any incentives or pay that Complainant would have received had she received a Level 4 rating. Documentation establishing that the rating was changed and that Complainant was paid all incentives and pay must be submitted to the Compliance Officer, as referenced below.
3. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages for her reprisal claim, and will afford her an opportunity to establish a causal relationship between the retaliation she was subjected to and the pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. A copy of the final decision must be submitted to the Compliance Officer, as referenced below.
4. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide sixteen (16) hours of EEO training to all management officials at this facility, with a focus on reprisal.
5. Within thirty (30) calendar days from the date this decision becomes final, the agency shall consider taking disciplinary action against the Chief of Staff and the Commander. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
The Agency is further directed to submit a report of compliance, as provided in the statement "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. � �1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
Footnotes
1
The Agency accepted the AJ's finding of discrimination, but appealed the AJ's award of compensatory damages. In Coffee v. Dep't of Army, EEOC Appeal No. 0720090012 (March 13, 2009), we affirmed the AJ's award of $75,000 in compensatory damages. Similarly, in Coffee v. Dep't of Army, EEOC Appeal No. 0120093008 (Nov. 17, 2009), we ordered the Agency to pay Complainant's requested attorney's fees.
2
The Chief of Staff was deployed to Iraq at the time of these events, and communications between the Chief of Staff and the supervisor were via email and telephone. Many of the Chief of Staff's correspondence to the supervisor were sent to an invalid email address, making it impossible for the supervisor to receive the emails or respond.
3
See, for example, Mayer v. Dep't of Homeland Security, EEOC Appeal No. 0120071846 (May 15, 2009) (The Commission found that summary judgment was appropriate, however the AJ erred in finding in favor of the Agency, as the record reflects that Complainant was subjected to sexual harassment and a hostile work environment).
4
We note that the AJ did not address this portion of the supervisor's testimony at all in her summary judgment decision.
5
We note that the Chief of Staff stated that there is a clique in the office and Complainant and her supervisor are part of the clique. However, the Chief of Staff also stated that he trusts Complainant's supervisor's judgment when it comes to the performance ratings of her staff.