0120070562
02-12-2009
Carol A. McQuay, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Carol A. McQuay,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Audit Agency),
Agency.
Appeal No. 0120070562
Hearing No. 520-2006-00080X
Agency No. N05-02
DECISION
On November 8, 2006, complainant filed an appeal from the agency's October
11, 2006 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 appeal is deemed timely and is
accepted 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 Senior Auditor, GS-0511-12, at the agency's Iraq Branch
Office. Complainant began a six-month term temporary assignment in Iraq
on May 24, 2004. She returned for another six month assignment in January
2005 and was scheduled to end her tour duty in Iraq in July 2005.
In early March 2005, complainant applied for the position of Supervisory
Auditor, GS-511-13, but the agency selected a White male for the position.
Also in early March 2005, complainant applied for the position of Auditor,
GS-511-11/12, but complainant also was not selected for this position.
On March 29, 2005, the Regional Audit Manager (complainant's third level
supervisor) informed complainant that her tour of duty in the Iraq Branch
Office would end on April 5, 2005.
On July 18, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American), sex
(female), color (black), age (over 40 years old), and in reprisal for
prior protected EEO activity when:
1. On March 29, 2005, the agency ordered complainant to return to the
United States from temporary duty in the Iraq Branch;
2. In April 2005, the agency notified complainant that she was not
selected for the position of Supervisory Auditor, GS-511-13, as advertised
under JOA NE-205-9; and,
3. In May 2005, the agency notified complainant that she was not selected
for the position of Auditor, GS-511-11/12, advertised under JOA NE-05-03.
At the conclusion of the investigation, complainant was provided 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 motion for a decision without a hearing
and issued a decision without a hearing finding no discrimination on
October 3, 2006. The agency subsequently issued a final order fully
adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ improperly found no
discrimination. Complainant contends that many co-workers who engaged
in misconduct were not recalled from their Middle Eastern assignments.
Complainant further contends that she was better qualified for the two
positions at issue than the selectees because she had an "exceeds fully
successful" rating, had a security clearance, and is a certified public
accountant (CPA). The agency requests that we affirm its final order.
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 EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999) (providing that an administrative judge'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").
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.
In the instant matter, we find that the AJ properly issued a decision
without a hearing because no genuine issue of material fact exists.
In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate
treatment claim). First, complainant 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. Kimble
v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
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). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Assuming arguendo that complainant established prima facie cases of
discrimination and reprisal for her claims, we nonetheless find that
the agency offered legitimate, non-discriminatory explanations for its
actions. Specifically, the agency stated that complainant was returned
to the United States from temporary duty in the Middle East because
complainant had difficulty obeying instructions from her supervisors,
complainant refused to conduct audits as directed by supervisors, the
contractor complained to the Administrative Contracting officer (ACO),
and the ACO complained that complainant would not talk to her.
Complainant maintains that the agency's explanation is pretextual because
she was never disciplined by the agency. However, even though the agency
did not discipline complainant, the record contains several emails from
complainant and supervisors that reflect that complainant had strained
interactions with management and co-workers. For instance, the record
contains an email dated February 26, 2005 in which complainant directly
challenged her supervisor's instructions in a message that was copied
to co-workers. Complainant maintains that the agency did not recall
twelve employees who engaged in various acts of misconduct including:
making false statements on an application; drinking alcohol; assaulting
a co-worker; having a romantic affair with a subordinate employee;
having a romantic affair with an employee of a defense contractor;
arguing with supervisors; and, disagreeing with a supervisor regarding
an audit reports. However, we note that complainant has not provided
any evidence that these co-workers were supervised by the same first-line
supervisor as complainant and most of the alleged actions did not involve
insubordination. Thus, we find that complainant failed to provide any
persuasive evidence from which it could be reasonably concluded that
the agency's explanations were pretext for unlawful discrimination.
With respect to claim 2, we find that the agency offered a legitimate,
non-discriminatory reason for its actions when it stated that the selectee
was chosen for the position because he was already serving in a GS-13
supervisory auditor position, whereas complainant had never served as
a supervisory auditor. Complainant inexplicably maintains that the
agency selected a white female for the position, but a Standard Form 50
reflects that the agency placed a white male candidate who was already a
GS-13 supervisory auditor into the position. Complainant has not shown
that her qualifications are plainly superior to the qualifications of
the selectee.
With respect to claim 3, the agency stated that complainant was not
chosen for the position because "she was not able to get along with
three supervisors and her manager." Complainant maintains that she was
more qualified for the GS-11/12 auditor position because she was more
experienced than any of the seven selectees. Complainant notes that
only two selectees were CPAs, only one had served longer in a GS-12
auditor position than complainant, and only one candidate had better
performance ratings than complainant. The record reveals that only one
selectee had a rating below complainant's exceeds fully successful rating,
and that candidate was rated "fully successful" and was a GS-12 auditor.
Moreover, while being a CPA is an asset for an auditor position, it is
not a requirement. In this case, we find that the agency reasonably took
complainant's strained relationships with supervisors into account when
making its selection for the auditor position. Thus, we find that the
AJ properly found no discrimination because complainant failed to provide
any evidence from which it could be reasonably concluded that the agency's
explanations were pretext for unlawful discrimination for claims 1 - 3.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_February 12, 2009_________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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