0120140264
04-19-2016
Geraldine G.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Geraldine G.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120140264
Hearing No. 460-2013-00017X
Agency No. IRS-120-294F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 18, 2013, 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 reasons stated below, we AFFIRM the Agency's final order which fully implemented the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision without a hearing that found that Complainant did not demonstrate that she was subjected to discrimination, reprisal, or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that: (1) summary judgment was appropriate in this case; and (2) that Complainant did not establish that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), color (medium Brown), and reprisal for prior protected EEO activity when on or about February 12, 2012, she received a performance evaluation for the period of January 1, 2011 - December 31, 2011 that was lower than the prior year's rating.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst, GS-11 at the Agency's LB&I Division, Natural Resources and Construction facility in Houston, Texas. Complainant maintained that in 2010, she filed an EEO complaint after her then supervisor (S1) lowered her performance rating from 5.0 to 4.2. As part of a settlement, her performance rating was raised to 4.6.
With the arrival of a new supervisor (S2), Complainant indicated that she was hopeful she would be treated fairly. Subsequently, however, Complainant maintained that as a result of her prior EEO activity, her race, and her color, S2 lowered her performance rating from 4.6 to 4.4. According to Complainant, S2 falsely claimed that she, Complainant, was not "thrilled" when asked to help out by performing extra work. Complainant explained that after constantly being placed on details and given temporary promotions, S2 advised her to prepare a Career Learning Plan (CLP). Complainant prepared the CLP and asked S2 to consider her for additional assignments that would provide her with promotional opportunities. S2 refused to do so until on October 12, 2011, when an attempt was made to assign her additional duties but it was made clear that it was not going to be a temporary promotion. Complainant expressed concern that she would be performing the same work as a GS-13 and GS-14 budget analyst but not getting a temporary promotion or receiving pay commensurate with the additional duties. On October 26, 2011, after considering Complainant's concerns, S2 cancelled the assignment opportunity and refused to give her a temporary promotion. Complainant maintained that S2 used a false interpretation of this incident in order to support lowering her rating. Further, Complainant maintained that S2 provided additional false information when she indicated that Complainant's performance rating was lowered because Complainant sometimes had difficulty identifying the underlying "big picture or macro issues."
On May 2, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), color (medium Brown), and reprisal for prior protected EEO activity when on or about February 12, 2012, she received a performance evaluation for the period of January 1, 2011 - December 31, 2011, which contained untrue statements and an overall rating of 4.4 which was lower than the prior year's rating of 4.6.
Following an investigation conducted by the Agency, Complainant requested a hearing before an AJ. The AJ issued a decision without a hearing finding that assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's appraisal was lowered from a 4.6 to a 4.4 based on her performance and management's observations of her work. Specifically, management indicated that it cautioned Complainant during her mid-year evaluation about the potential for a reduced rating due to performance issues. During her year-end review it was noted that under the critical element Employee Satisfaction - Employee Contributions, the narrative read:
[This] example relates to working cooperatively with others on the staff. When one of the budget analysts was detailed to International, you were asked to assume four budget activities while we were shorthanded. Your initial reaction to this temporary additional workload was not one that could he described as a willingness to work cooperatively. Further, under the critical element Customer Satisfaction - Knowledge, the narrative read: this critical element covers verbal communication and listening. Your midyear review noted you sometimes have difficulty identifying underlying big picture (or macro) issues in some customer communications.
The AJ noted that this was also reflected in Complainant's performance after the midyear review. For example, in response to communication from another business unit concerning the end of a temporary promotion, Complainant focused on the technical details of the temporary promotion (number of days allowed, start date, etc.), when the underlying issue concerned that business unit's desire to notify the employee of the termination before he received an automatic termination notice from the HR system. Management maintained that the above factors were responsible for the two-point reduction in Complainant's rating.
The AJ also determined that Complainant's prior EEO activity occurred almost a year prior to her alleged adverse action. Thus, Complainant failed to raise a genuine issue of material fact with respect to her reprisal claim. Moreover, the AJ noted that Complainant failed to submit a brief in opposition of the Agency's motion for summary judgment. The AJ determined that Complainant did not sustain her burden of proving by a preponderance of the evidence, when drawing all inferences from the facts in Complainant's favor that the Agency unlawfully discriminated against her because of her race, color, or reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she did file a response to the Agency's motion for summary judgment on January 22, 2013, but the AJ did not consider her arguments. Complainant also maintains that the AJ erred in finding that she did not establish a prima facie claim of race discrimination. Complainant asserts that the fact that she is black and was required to complete a Career Learning Plan in order to be promoted or be considered for promotion but other employees not of her protected bases were not required to complete a CLP is enough to establish a prima facie case.
Complainant contends that the AJ also erred in finding that she did not establish a nexus between her protected activity and the adverse action. Complainant maintains that S2 was aware of her prior EEO activity and because of that lowered her rating for the rating period. Complainant asserts that the AJ erred in finding that the Agency's actions were not pretextual as the Agency's implausible rationales for lowering her appraisal were instead discriminatory.
Finally, Complainant contends that this matter should be remanded to the AJ for a hearing because genuine issues of material fact remain.
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. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
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). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
With respect to the merits of Complainant's claims, we further find that the Agency's final order should be affirmed. Even if we assume arguendo that Complainant established prima facie cases of reprisal, race, and color discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's performance rating was lowered because it was determined that she was not willing to work cooperatively, and because it was believed that she did not always see the big picture and that hurt her work quality. Clearly, Complainant does not agree with her supervisor's assessment, but she has presented no evidence that raises a genuine issue of material fact that the assessment was based on her race, color or previous EEO activity. Therefore, we find that Complainant has not demonstrated that the Agency's explanations for its actions were pretext for discrimination.
Further, with regard to Complainant's allegation that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, we find that 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.
CONCLUSION
Accordingly, we find that the AJ did not err in finding that: (1) summary judgment was appropriate in this case; and (2) that Complainant did not establish that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), color (medium Brown), and reprisal for prior protected EEO activity when on or about February 12, 2012, she received a performance evaluation for the period of January 1, 2011 - December 31, 2011 that was lower than the prior year's rating. We therefore AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
___4/19/16_______________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140264
2
0120140264