0120142394
09-26-2016
Ashlea P.,1 Complainant, v. Denise Turner Roth, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ashlea P.,1
Complainant,
v.
Denise Turner Roth,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120142394
Hearing No. 410-2013-00097X
Agency No. 104FASDCH07
DECISION
On June 16, 2014, Complainant filed an appeal from the Agency's May 12, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Assistant to the Regional Commissioner at the Agency's Federal Acquisition Service facility in Atlanta, Georgia.
On March 8, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (55) when:
1. In November 2009, Complainant was denied the opportunity to compete for a GS-15 position in the Regional Commissioner's office; and
2. In December 2009, Complainant's request for a desk audit was denied/ignored.
The Agency dismissed the complaint and Complainant appealed. In a decision dated October 27, 2011, the Commission reversed the dismissal and remanded the claims for an investigation. See EEOC Appeal No. 0120103400. 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 timely requested a hearing and the AJ held a hearing on August 2-7, 2013, and issued a decision on March 12, 2014. Specifically, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action when Complainant's first level supervisor (RMO1: male, born 1967) testified that he created the position for the Selectee (S: male, 46 years old) because due to new requirements the head of S's former organization wanted managers with contracting warrants, which S did not possess, so S was no longer able to work in his previous position. RMO1 further stated S had experience supervising managers while Complainant did not. The AJ further found that Complainant failed to establish that the Agency's articulated reason was a pretext to mask discrimination. With regard to claim 2, the AJ dismissed the claim "for lack of evidence." 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
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination.
We find initially that RMO1 articulated a legitimate nondiscriminatory reason for his action in laterally transferring S. RMO1 testified that S had previously worked as the Deputy Division Director for Assisted Acquisition Services but that the Director of that Division (RMO2, born 1968) and RMO1 decided to restructure the Division and require that all supervisors be warranted contracting officers. See Hearing Transcript dated August 7, 2013 (HTII), pp. 35-6. RMO1 testified that since S did not possess a warrant he could no longer work in his position "[s]o we felt it was best to move him to a different part of the organization." Id. RMO1 further testified that "[w]ith the additional [GS] 14 that we were picking up and also the [GS] 14 that we were going to fill to handle some of the administrative work, I needed somebody to oversee those functions at the [GS] 15 level and I felt [S] had the qualifications to fill that one." Id., p. 54. The Agency having articulated a reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext to mask discrimination, or otherwise show discrimination occurred. See Hicks, Burdine, McDonnell Douglas.
Following a review of the record we find that Complainant has not met her burden. Complainant testified that RMO1 and S were friends, see Hearing Transcript dated August 2, 2013 (HTI), p. 58, and that Assisted Acquisition Services did not need to institute a requirement that its supervisors all be warranted contracting officers, thus requiring S to leave his previous position there, see id., pp. 43-7. We find such arguments to be unpersuasive. With regard to Complainant's contention that RMO1 and S were friends, such an argument does not tend to show RMO1's action was based on age or sex.
With regard to the argument that Assisted Acquisition Services did not need to institute a requirement that its supervisors be warranted, it is implausible to suggest that the Agency would institute an unnecessary requirement simply as an excuse to transfer S when he could have been transferred anyway even without the new warrant requirement that caused him to lose his old position. The AJ noted that RMO2 testified that she was not trying to comply with Agency policy when she decided to ensure all supervisors in her Division possess warrants, but with the needs of the Department of Defense which was going to audit her program. See AJ's Decision, p. 12. The AJ found that RMO2 "[p]roceeding with an abundance of caution does not constitute circumstantial evidence of discriminatory intent." A review of the record shows that RMO2 testified that:
[A]t that time, we were prepping for one of the major audits, which the Department of Defense, actually came in and we knew they were coming in to perform an audit on the program. Also we had the GSA procurement management review, which is an internal audit that GSA does to prep us for other audits, and also to check our internal controls and acquisition processes. So therefore, in preparation for that, I actually, it was a knowledge of some policies that DOD had put out requiring their 1102 contracting officers and buyers to report to supervisor 1102s. And in order to position our program to ensure that we do pass this audit, because if we had failed the audit, it could have potentially shut down our entire program where jobs, including my job, would've been at stake. So therefore, I positioned the program in order for us to be successful and pass the audit.
HTI, p. 212.
The AJ found RMO2's testimony to be credible. Following a review of the record we find the AJ's findings in this regard to be supported by substantial evidence and that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the transfer was based on age or sex. We therefore discern no basis to disturb the AJ's findings.
With regard to claim 2, the AJ's Decision states that the matter was dismissed for "lack of evidence" but does not provide any additional details about the AJ's findings in this matter. Following a review of the record we find that the Agency articulated a legitimate nondiscriminatory reason for its action when RMO1 and the Human Resources Director (HRD, female, born 1951) both averred that they had no recollection of Complainant's request. See Report of Investigation (ROI), Exhibit 7, p. 7 and Exhibit 10, p. 4. RMO1 further averred that "[t]he complainant was in a GS-14 position description and was performing those duties." Id. On appeal, Complainant points out that the affidavits of RMO1 and HRD contradict what they told the EEO Counselor, which was that they were aware Complainant had requested a desk audit, that RMO was late in responding, and that by the time an audit was to be conducted Complainant had already announced her retirement and "a desk audit comes off the board when someone retires". ROI, Exhibit 3, p.6. We note, however, that RMO1 and HRD's affidavits to the Investigator, claiming to have no memory of Complainant's desk-audit request, were provided two and a half years after their statements to the EEO Counselor. Significantly Complainant has not shown RMO1 or HRD harbored any animus towards Complainant's age or sex and we find she has not met her burden of establishing that the Agency's reason for its action is a pretext to mask discrimination.
Finally, we note that on appeal Complainant raises an issue entitled "sex based wage discrimination/Equal pay" and contends that the AJ "misunderstood the case." We note however that the hearing transcript shows that the AJ discussed the issues to be addressed in the case and that Complainant made no objection, and specifically did not raise the issue of sex based wage discrimination or equal pay. See HTI, pp. 4-5. We therefore decline to entertain that issue here. With regard to the AJ's handling of the hearing, we note that under 29 C.F.R. � 1614.109(e) AJ's have the power to regulate the conduct of a hearing, limit the number of witnesses, and exclude persons from the hearing. A review of the transcript does not show that the AJ abused his discretion in this regard.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's Decision is supported by substantial evidence and we discern no basis to disturb the AJ's findings. We therefore AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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 26, 2016
__________________
Date
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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