0120113046
11-23-2011
Barbara E. Sherrill, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.
Barbara E. Sherrill,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120113046
Hearing No. 540-2010-00065X
Agency No. USA-2009-00509
DECISION
On June 2, 2011, Complainant filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the Agency’s
final action concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against based
on her age (50) and reprisal for prior protected EEO activity under an EEO
statute that was unspecified in the record when on or about October 22,
2008, she was not hired into a contract position serving as a Paralegal
for the United States Attorney’s Office located in Tucson, Arizona.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
an applicant with a private staffing company called Hunter Employment
Services, Inc. (hereinafter Hunter Employment) for a contract position
serving as a Paralegal or Legal Assistant for the United States
Attorney’s Office located in Tucson, Arizona. On July 26, 2009,
Complainant filed an EEO complaint alleging the above issue.
At the conclusion of the investigation, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). After both parties submitted
motions for a decision without a hearing, the AJ made a decision without
a hearing finding that the Agency was a joint employer with Hunter
Employment and the Agency did not discriminate against Complainant.2
The Agency then made a final order concluding that because more than 40
days passed since it received the AJ’s decision, under 29 C.F.R. §
1614.110(a), the AJ’s decision was now the Agency’s final action.
The AJ found that the Agency was a joint employer because had Hunter
Employment hired Complainant to provide the Agency legal assistant or
paralegal services, the Agency would have had extensive control over the
means and manner of the work performed by Complainant. Ma v. Department
of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390
(May 29, 1998).
Complainant applied for the contract position by sending in her resume to
Hunter Employment, and its Regional Staffing Manager responded by sending
Complainant an application package to complete and return back to her.
Complainant contended that she did so. Complainant wrote that after
reviewing a copy of her application packet and noticing she did not sign
something, on October 15, 2008, she called the Staffing Regional Manager.
Complainant contended that the Regional Staffing Manager told her the
application package was never received, and she would resend another,
but this never happened. Complainant asserted that she followed up
with the Regional Staffing Manager on October 21, 2008, who said the
next day that there were no positions left to pursue.3
The application package contained background inquiry forms. One was
a Questionnaire for Public Trust Positions, an Office of Personnel
Management (OPM) form, which solicited information about date of
birth and prior employment, including the reason the job ended.
Complainant submitted a copy of the completed form for the record, and
on it she gave her date of birth and the reason for leaving a prior job
as “Retaliation/Discrimination.”
Complainant expressed the belief that Hunter Employment received her
application package, and that the Agency, with Hunter Employment, then
stopped the application process, i.e., discriminatorily cut her off
from consideration.
Citing EEOC Enforcement Guidance: Application of the ADA to Contingent
Workers Placed by Temporary Agencies and Other Staffing Firms,
No. 915.002 (Dec. 22, 2000), the AJ ruled that since the Agency is a
joint employer, it is liable for actions taken by Hunter Employment
where it knew or should have known of the alleged discrimination and
failed to take corrective action within its control. The AJ determined
that Complainant failed to meet this standard. First, the AJ found
that there was no genuine issue of material fact that Agency officials
reviewed Complainant’s application.4 Second, the AJ found that there
was no genuine issue of material fact that Agency officials were aware
at the relevant time that Complainant complained that Hunter Employment
discriminated against her based on age or reprisal discrimination.
The AJ concluded that Complainant’s allegation that the Agency stopped
the hiring process was based on speculation, not evidence.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ’s
legal and factual conclusions 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 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.
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).
On appeal, Complainant argues that the EEO investigator did not obtain a
statement from a central witness, i.e., the Hunter Employment Regional
Staffing Manager. In the investigative summary, the investigator
indicated that she tried to contact the Regional Staffing Manager, but
was unsuccessful in getting a statement. The file contains a February
10, 2010, letter by a Hunter Employment Staffing Supervisor to the EEO
investigator stating that the Regional Staffing Manager resigned about a
year prior. The Staffing Supervisor indicated that she made efforts to
get the former Regional Staffing Manager to talk to the investigator, but
the former Regional Staffing Manager stopped replying to her messages.
The dates in the letter indicate that the Regional Staffing Manager
resigned before Complainant contacted an EEO counselor. The AJ found
that she would not sanction the Agency for failing to secure a statement
from someone who was not a federal employee. This finding was proper.
Cf. 29 C.F.R. § 1614.109(f)(1).
Complainant also argues on appeal that she had contact with Agency
officials about alleged discriminatory treatment. However, a review of
the record reveals that she does not contend she alleged to them that
the treatment was discriminatory during the relevant time.
We agree with the AJ’s finding that Complainant’s allegation that the
Agency stopped the hiring process was based on speculation, not evidence.
The AJ’s decision to make a decision without a hearing finding no
discrimination against the Agency is AFFIRMED.
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
November 23, 2011
__________________
Date
1 While the parties dispute the precise language of the issue in
Complainant’s complaint, the ultimate issue is as defined above.
The Agency defined the issue as occurring in 2008, but Complainant’s
factual statements indicate it occurred in 2009.
2 Complainant also filed an administrative charge of discrimination
against Hunter Employment alleging discrimination. On January 23, 2009,
the EEOC’s Phoenix District Office sent Complainant a letter finding
that based on its investigation, it was unable to conclude that the
information obtained established statutes were violated. The Phoenix
District Office explained that this did not certify the respondent
complied with the statutes, and gave Complainant the right to file a
civil action in Court.
3 While Complainant actually wrote the events in this paragraph occurred
in 2009, it appears she meant 2008.
4 Complainant had her fingerprints taken by the Agency, and the
fingerprint card contained date of birth information. The AJ noted there
was no evidence this information was communicated to anyone other than
the person who took the fingerprints.
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0120113046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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