0120101468
06-24-2010
Alpha B. Davis, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, (Occupational Safety & Health Administration), Agency.
Alpha B. Davis,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
(Occupational Safety & Health Administration),
Agency.
Appeal No. 0120101468
Hearing No. 420-2008-00207X
Agency No. 08-04-040
DECISION
On January 19, 2010, Complainant filed an appeal from the Agency's
December 28, 2009 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 AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Compliance Safety and Health Officer, Industrial Hygienist (GS-12)
at the Agency's Birmingham District Office in Birmingham, Alabama.
On December 30, 2007, Complainant filed an EEO complaint (amended on
March 4, 2008) alleging that the Agency discriminated against her on the
bases of race (African-American), sex (female), and reprisal for prior
protected EEO activity when:
1. On or about October 4, 2007, she received a "Highly Effective" rating
on her annual performance appraisal for the period from September 30,
2006 through October 1, 2007 (hereinafter "FY 2007"), rather than an
"Exemplary" performance rating; and,
2. When, over an unspecified period of time, she received less favorable
consideration concerning the distribution of assignments and was held
to a higher performance standard.
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. After both parties submitted motions for a
decision without a hearing, the AJ assigned to the case issued a decision
without a hearing on December 8, 2009. 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.
CONTENTIONS ON APPEAL
Complainant asserts that the AJ erred in ruling that Complainant was not
similarly situated to the coworker allegedly shown favorable treatment
(in the form of a higher rating) so as to establish a prima facie case
of discrimination. Complainant argues that work assignments are a factor
in the rating process, and that the distribution of work assignments
is manipulated in order to adversely affect Complainant's rating.
Furthermore, Complainant says that it is simply "not credible" to believe
that the officials responsible for her rating did not know about her
prior protected EEO activity. The Agency urges the Commission to affirm
its order implementing the AJ's decision in full primarily because, the
Agency argues, Complainant cannot show that she was similarly situated
to the comparators allegedly shown favorable treatment at the time of
the challenged actions.
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 Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing
that an AJ'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.
Based on a review of the file, the Commission finds that the AJ
appropriately issued a decision without a hearing, as Complainant
failed to proffer sufficient evidence to establish that a genuine
issue of material fact exists such that a hearing on the merits is
warranted. Specifically, the Commission finds that the AJ made certain
that: the investigative record was adequately developed; there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
Race and Sex Discrimination
In order 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). Complainant must initially establish a prima facie case by
demonstrating that he or she 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). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. 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).
We note that Complainant's task here is not an onerous one. To shift the
burden to the Agency, Complainant must only set out a prima facie case of
discrimination by showing through a preponderance of the evidence that:
(1) she is a member of a protected group under Title VII; and (2) that
she was treated differently from similarly situated employees outside
her protected group. O'Neal v. USPS, EEOC Request No. 05910490 (July
23, 1991). With respect to Complainant's allegations of discrimination
based on race and sex, the Commission agrees with the AJ that Complainant
has failed to make out a prima facie case of disparate treatment because
the two comparators Complainant points to - in an effort to substantiate
her claim - are not similarly situated employees. The Commission has
long held that to be similarly situated, "[A]ll relevant aspects of
[Complainant]'s employment must be nearly identical to those of the
comparative employee." The Commission considers the following factors
in making the determination: whether Complainant and the comparators
come under the same manager's supervision; whether Complainant and the
comparators perform the same job function; and whether Complainant and
the comparators are on the same tour of duty. See Darbouze v. Department
of Justice, EEOC Appeal No. 01954013 (June 25, 1997).
The Commission agrees with the conclusion of the AJ that Complainant and
comparators are not similarly situated. While Complainant and comparators
may share a supervisor, each holds a distinct position within the Agency.
Complainant is an Industrial Hygienist, while comparators are Safety
Specialists. Indeed, as Complainant pointed out in a letter to the
Office of Personnel Management dated October 10, 2007, her position is a
"professional occupation[]" which requires academic credentials, whereas
the comparators' positions do not require academic credentials and are
(as pointed out by OPM in its response to Complainant) administrative and
management in nature. Given that Complainant has previously taken the
position - before OPM - that her position is different in nature from that
of Safety Specialist, the Commission is not persuaded by Complainant's
attempt here to deemphasize the differences by referring to the two
positions by the same name, viz., Compliance Safety and Health Officers.
Because Complainant and comparators hold distinct positions, they are
not similarly situated employees; therefore, Complainant fails to meet
her burden of setting out a prima facie case of disparate treatment
based on race and sex.
Even assuming arguendo that Complainant set out a prima facie case of
discrimination, the Commission finds that the reasons proffered by the
Agency here are legitimate, nondiscriminatory ones. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The officials
responsible for rating and reviewing Complainant's performance both
suggested that Complainant - who received an evaluation of "Highly
Effective" - did not volunteer for additional assignments, whereas one
of the comparators - who received an evaluation of "Exemplary" - did
volunteer for additional assignments; thus, assuming Complainant and that
comparator to be similarly situated for purposes of satisfying step one
of the McDonnell Douglas analysis, the Agency has provided legitimate,
nondiscriminatory reasons for the challenged action.1 With respect to
Complainant's second allegation, the Commission agrees with the AJ that,
given Complainant's specialty in chemicals, the Agency would assign the
majority of safety investigations to the Safety Specialists, and save
the (likely-more-infrequent) health investigations involving chemicals
to the Industrial Hygienists, like Complainant.
Complainant can still prevail provided that she satisfy the third step of
the McDonnell Douglas analysis; however, the Commission agrees with the
AJ that Complainant has not met her burden of showing that the Agency's
reasoning is pretextual.
Reprisal
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. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Complainant avers that it is "not credible" to believe that her
supervisors hold no knowledge of her past EEO activity, given the
supervisors' positions within the Agency. Despite both officials
maintaining exactly that, Complainant nevertheless asserts that the
challenged actions at issue here are motivated in part by a desire to
retaliate against her based on prior protected activity. The Commission
notes that mere conjecture is not enough to substantiate a claim so as
to survive summary disposition. Cf. O'Neill v. Department of Veteran's
Affairs, EEOC Appeal No. 0120083796 (May 14, 2010). Therefore, the
Commission finds that no reprisal occurred.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM.
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
June 24, 2010
__________________
Date
1 With respect to the second comparator, the Commission notes that this
comparator did not actually receive an exemplary rating. The rating
official stated that only one Safety Specialist received an "Exemplary"
rating, and Complainant - in her amended EEO complaint - stated that it
was merely her belief that this comparator received an "Exemplary rating."
Only now, in her brief in support of this appeal, does the Complainant
unequivocally state that both comparators received "Exemplary" ratings;
however, she offers no evidence in support of this statement, and given
that the rating official testified to the contrary, the Commission does
not accept Complainant's contention.
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0120101468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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