0120131533
05-08-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120131533
Hearing No. 570-2011-00374X
Agency No. NRCS-2010-00053
DECISION
Complainant filed an appeal from the January 7, 2013 decision of an EEOC Administrative Judge (AJ), which became the Agency's final decision, concerning an equal employment opportunity (EEO) complaint. Complainant alleged 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Personal Property Specialist, GS-11, at the Agency's National Resources Conversation Services (NRCS) in Washington D.C.
On January 22, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race (Chamorro), national origin (Pacific Islander), sex (female), color (brown), age (over 40), and in reprisal for prior EEO activity when:
on October 23, 2009, she was given an interim position description by her supervisor for a Realty Specialist position, GS-1170-11, which does not accurately reflect the work she is performing.
After the investigation of the complaint, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing.
On January 7, 2013, the AJ issued a decision by summary judgment in favor of the Agency. The Agency had argued, as clearly established in the record and admitted by Complainant, that the position description that Complainant's supervisor provided her on October 23, 2009 was an "interim position description" and that she was told she would later receive a permanent position description.
Further, the Agency argued that this "interim position description" was for a Realty Specialist, GS-1170, while Complainant herself stated in her rebuttal statement that the "interim position description" without the Standard Form 50 (SF-50) changing her title and series in her personnel records is "of no value and meaningless to me." The Agency stated that a personnel action requires at least the submission of an SF-52, which did not occur when Complainant was provided the October 2009 interim position description. The Agency explained that a SF-50 is a Notification of Personnel Action which is produced following the submission of a Standard Form 52 (SF-52), a Request for Personnel Action. The Agency did not create either a SF-50 or SF-52 to make the denoted adjustments to Complainant's title or series in October 2009.
The Agency stated "consequently, the action at issue in this case cannot be a final personnel action, but instead, is, at best, a preliminary step toward a possible personnel action." The Agency stated that a review of Complainant's own statements support its conclusion. The Agency argued that even if Agency management concedes that the interim position description at issue constituted a preliminary step toward a future personnel action, the EEOC regulations are clear that it does not constitute the type of action necessary to survive dismissal.
In her January 7, 2013 decision, the AJ determined while the Agency argued that the instant complaint should be for failure to state a claim and for being preliminary step to taking a personnel action, it was more properly analyzed whether it states the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the AJ noted that in her prior EEO complaint, Complainant raised the same claim that the Agency gave her an interim position description for Realty Specialist position, GS-1170-11, which purportedly does not accurately reflect the work she is performing (Agency Case No. NRCS-2008-00487).
The AJ then addressed the instant formal complaint on the merits, finding no discrimination. The AJ concluded that even if Complainant established a prima facie case of race, national origin, sex, color, age and reprisal discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The AJ noted that in October 2009, Complainant's first level supervisor (supervisor) issued an interim position description based on input from those parties who were familiar with Complainant's actual duties and responsibilities. Complainant's former supervisor had submitted Human Resources a proposed position description outlining duties related in large to Complainant's real property responsibilities. The AJ noted that the former supervisor agreed with Complainant that she did not perform any personal property responsibilities. The AJ further noted that the supervisor attested that some preliminary steps were taken to perform a desk audit of Complainant's duties to complete a position description, but a final document had not been completed before Complainant's retirement.
In her affidavit, the supervisor stated that in October 2009, she was assigned to the Director, Management Services Division position. The supervisor stated at that time Complainant's interim position description "was prepared already when I received it. I signed the interim position description as her supervisor, which I was at that time it was presented to me." The supervisor stated that the subject interim position description was also signed by the Acting Deputy Chief for Management. The supervisor stated that it was her understanding that Complainant and her former supervisor had input in Complainant's interim position description.
With respect to Complainant's allegation that her position description action was withheld due to reorganization/restructure, the supervisor stated "I would not characterize it as withheld. As we worked through the realignment, all the position descriptions are being reviewed or revised based on what our mission needs are. We need to review them and make sure they actually reflect the duties.
The Agency did not issue a final order adopting the AJ's finding. As a result, the AJ's decision became the Agency's final decision. The instant appeal followed.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that the AJ erred dismissing her complaint because she "believes she is entitled to a hearing and that this case does include a pretext to hide a discriminatory animus...Complainant does not agree that the file does not include evidence to justify a hearing."
ANALYSIS AND FINDINGS
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, national origin, sex, color, age and/or because of retaliatory animus due to her prior EEO activity. We discern no basis to disturb the AJ's decision.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Commission to AFFIRM the AJ's decision which became the Agency's final decision.1
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
May 8, 2015
__________________
Date
1 Because we affirm the Agency's finding of no discrimination for the reason stated herein, we find it unnecessary to address alternative dismissal grounds.
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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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