Dolores J.,1 Complainant,v.Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.

Equal Employment Opportunity Commission

Aug 9, 2019

0120181703 (E.E.O.C. Aug. 9, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dolores J.,1
Complainant,

v.

Davita Vance-Cooks,
Public Printer,
United States Government Printing Office,
Agency.

Appeal No. 0120181703

Hearing No. 570-2017-00022X

Agency No. GPO1615

DECISION

On April 25, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 27, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

ISSUE PRESENTED

Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) correctly
determined that summary judgment in favor of the Agency was appropriate because Complainant
failed to present any evidence to establish discrimination on the bases of race and sex when, on
November 30, 2015, she received a rating of “Exceeds Expectations” on her FY- 2015
Performance Evaluation.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Publishing Specialist,
PG-12-8 at the Agency’s Customer Services facility in Washington, DC. On February 2, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American) and sex (female) as set forth above. S1, the Supervisory Printing
Specialist, was her first level supervisor. S2, the Manager of Charge Team 1, was her second level
supervisor. S2 was the rating official for Complainant due to personnel changes.

Complainant received, but refused to sign, her FY-2015 Performance Evaluation in which she
received an overall rating of “Exceeds Expectations.” In the judgment of S2, Complainant’s
performance did not meet the standards for an outstanding rating for elements 3 and 4 of her
performance plan. Complainant stated that, with regard to element #3, Administration of Contracts
in support of publishing services, she organized the filing area to make things easier for all of the
staff to access the records they needed to complete their work. She believed that this should have
been credited toward an outstanding rating as improving customer service. S2, however, stated
that:

The activities of cleaning out and relocating files to organize the filing area were
not part of [Complainant’s] regular daily duties. This is part of the archiving
responsibilities outlined in the technician performance plan. She took on this
responsibility herself. I do not know if this was discussed with her supervisor prior
and there was nothing documented that this was agreed upon to be acceptable for
an outstanding element. The outstanding for element #3 required documentation
from the specialist demonstrating how the recommendation or supervisor approved
action that could be an improvement of an existing process and/or enhance service
to customers or revenue.

With regard to element #4, Outreach, Complainant described five different meetings she had with
various agencies that related to improving the Agency’s level of service to them. In addition, she
participated in focus group effort to improve the overall level of service to customers, and also
completed Lead training. S2, however, stated that:

Customer Service maintains Outreach Tracker for employees to record customer
meetings. Currently there are two meetings captured for performance year 15
indicating attendance by [Complainant] on 3.11.15 with HHS regarding a possible
508 Remediation Contract and on 7.16.15 with TSA, an initial meeting regarding
610s program. There may have been additional meetings and conversations as the
contract developed that would have been considered a follow up to this meeting.
The tracker only provides an overview of the meetings. The employee is required
to provide a summary (documentation) of the meeting attended to the supervisor.
This met the fully successful requirement of the participation in at least two (2)
customer/contractor meetings annually.

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S2 also noted that Complainant did volunteer to participate in a focus group and received an email
from the Deputy Director thanking her for her participation. However, he was not sure “if this was
provided prior to her annual evaluation as I was only privy to it a few weeks after our 12.31.15
meeting.” According to S2, Complainant, prior to the issuance of her evaluation, did not submit
documentation of her accomplishments. The Agency noted that some of the activities she cited as
accomplishments, after receiving the evaluation, were not considered part of her duties, as noted
above. S2 also testified that, with respect to the ratings that he reviewed, there were male
employees and white employees who did receive outstanding ratings, and that all employees were
rated based on their performance for FY-2015.

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.
On February 14, 2018, the AJ assigned to the case issued a notice of intent to the parties that after
a review of the record, she had determined that there appeared to be no issues of material fact or
credibility that needed to be addressed at a hearing; and that she was considering issuing summary
judgment in favor of the Agency because there was no evidence that similarly situated persons
outside of Complainant’s protected bases were treated more favorably; and that Complainant had
not offered evidence to show that the Agency’s articulated reasons were pretextual or that any of
the actions were connected to her protected bases. On March 1, 2018, the Agency filed a response
to the notice of proposed summary judgment. As of the date of the AJ’s decision and order entering
judgment, Complainant had not filed a response to the AJ’s notice or to the Agency’s response.

The AJ subsequently determined that the complaint did not warrant a hearing and issued a decision
without a hearing on March 19, 2018. The Agency 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

On appeal, among other things, Complainant reiterates her allegations, indicating that her
performance rating was impacted by changes made to her records by her supervisor; and asserting
that she worked in a work environment of constant discrimination, harassment, and unfairness.

In its opposition to Complainant’s appeal, the Agency, among other things, asks that we affirm its
final order.

STANDARD OF REVIEW.

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 (EEO
MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
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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”).

ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, among other things,
Complainant reiterated her allegations, indicating that her performance rating was impacted by
changes made to her records by her supervisor; and asserting that she worked in a work
environment of constant discrimination, harassment, and unfairness. Ultimately, we find that the
AJ correctly determined that there are no genuine issues of material fact or credibility that merited
a hearing. We note that, in addressing an Administrative Judge’s issuance of a decision without a
hearing, a complainant’s opposition must consist of more than mere unsupported allegations or
denials and must be supported by affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Therefore, the
AJ’s issuance of a decision without a hearing was appropriate.

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To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race and sex, we find that the Agency provided legitimate, non-discriminatory reasons why she
received a rating of exceeds expectations and not outstanding for the rating period at issue.
According to S2, Complainant’s performance did not meet the standards for the outstanding level
for two required elements; and that she failed to submit documentation in support of her
accomplishments. He also noted that subsequently it was determined that some of the work
activities she cited as accomplishments were not considered part of her duties.

Additionally, as the Agency and the AJ aptly explained, Complainant, among other things, did not
demonstrate that the Agency’s explanations for her performance rating were pretextual or that S2
was ere motivated by discriminatory animus based on membership in her protected classes in the
FY 2015 the evaluation process. In fact, the evidence shows that S2 rated other employees outside
of Complainant’s protected classes the same as her. We find no evidence of pretext here. Other
than her unsubstantiated assertions, Complainant did not refute the evidence or the Agency’s
explanations; and without more, we find support for her claim of discrimination, harassment, or
unfairness. We therefore conclude that Complainant has presented no disputed genuine issues of
material fact that would warrant a reversal of the AJ’s decision or the Agency’s final order adopting
that decision.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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

August 9, 2019
Date