Alena C.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Sep 19, 2018

0120161663 (E.E.O.C. Sep. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alena C.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120161663

Hearing No. 570-2013-00472X

Agency No. GSA12NCRWPEAG9

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 24, 2016, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst,
GS-343-09, at the Agency’s Assisted Acquisition Services facility in Washington, D.C. On May
18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African-American) and age (61) when she learned on February 25,
2012, her promotion to a career ladder position was put on hold.

Complainant was hired as a competitive service Administrative Specialist in February 2003.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant asserts younger, newly hired employees were eligible for training and promotions
while she was not. From November 2008 to December 2010, Complainant concedes she was
receiving training and guidance from her Immediate Supervisor (S1) in order to attain a Project
Manager position. In June 2009, Complainant’s job was redefined into a Program Analyst
position. After S1 left the division, Complainant’s training opportunities were curtailed,
although not completely eliminated. Complainant did not apply for any other positions, including
any career ladder positions. Complainant stated she relied on S1’s alleged promises that she
would be promoted to a Project Manager, GS-11. In February 2012, Complainant learned her
promotion was still “on hold.” Thereafter, she filed a complaint of discrimination.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s August 15, 2014,
motion for a decision without a hearing and issued a decision without a hearing on March 9,
2016. 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

We must 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).
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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).

Here, the parties had engaged in discovery and after the Agency’s motion for summary
judgment, the Complainant filed a response. However, in that response Complainant failed to
identify facts in dispute or produce further supporting evidence that would create a genuine issue
of material fact. Such a dispute would indicate that a hearing is necessary to produce evidence to
support a finding that the Agency was motivated by discriminatory animus. Complainant has
failed to establish such a dispute. Accordingly, Complainant’s complaint was appropriate for
summary judgment decision. Furthermore, we find that the investigation of the complaint by the
Agency was appropriate.

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 (1978). Once Complainant has established a prima facie case, the
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency
is successful, the burden reverts back to the 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 Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711,
715-716 (1983).

Here, we find that assuming, arguendo, Complainant established a prima facie case of race and
age discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the record shows Complainant was not eligible for a promotion. S1
explained that Complainant did not qualify for a Project Manager position but was training and
gaining the experience necessary in order to apply for these positions. S1 noted that Complainant
would have had to apply to these career ladder project manager positions when they were
announced.
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The record shows, and Complainant admits, she never applied for a career ladder position.
Complainant also failed to show that any other employee in the MSB in a similar situation to
Complainant has received these types of promotions without applying.

Moreover, Complainant failed to demonstrate that the Agency’s failure to promote her was
related to her age or race. Even if Complainant was promised that she would be at the Project
Manager level or otherwise promoted, there is no indication that the breaking of the claimed
promise was motivated by discrimination. We find that Complainant has not shown that the
failure to promote her was a pretext for unlawful age or race discrimination.

CONCLUSION

The Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 19, 2018
Date