0120140629
06-29-2016
Hertha W.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hertha W.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120140629
Hearing No. 570-2012-00133X
Agency No. OJP201100260
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Lead Auditor at the Agency's Process Review Branch (PRB), Office of Audit Assessment and Management (OAAM), Audit and Review Division (ARD) in Washington, D.C.
On May 16, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), age (over 40), and in reprisal for prior EEO activity when:
on December 22, 2010, she did not receive an "Exceed Expectations" on her performance evaluation.
After an investigation, 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 August 29, 2013, the AJ issued a decision by summary judgment, finding no discrimination.
The AJ found that the record developed during the investigation established the following undisputed facts. On January 2009, Complainant started working for the Agency as a Lead Auditor. From January 31, 2010 to the present, the Deputy Director of ARD was Complainant's first line supervisor rating official. The Director of OAAM was the supervisor's first line supervisor rating official and Complainant's second line supervisor reviewing official.
In June 2010, Complainant filed a formal EEO complaint alleging that the Director discriminated against her by not selecting her as Deputy Director of ARD. On an unspecified date in the summer 2010, the Director informed Complainant's supervisor that Complainant had filed an EEO complaint contesting her non-selection for the Deputy position. A mediation session was conducted in an effort to resolve the complaint. However, the parties did not reach any resolution. Complainant's complaint was later dismissed on the grounds it was not timely filed.
The AJ noted that on June 18, 2010, the Director, Complainant's supervisor and Complainant signed Complainant's Employee Communication and Performance Plan (ECPP) identifying goals for the 2010 Performance Period from June 1, 2010 to November 30, 2010. Complainant's ECPP identified the following five equally weighted performance elements: (1) Job knowledge; (2) Completing tasks; (3) Quality of work; (4) Customer service; and (5) Communication. It also provided the standards under which Complainant's performance was to be evaluation and described performance as the "meets expectations" level for each performance element.
On September 21, 2010, Complainant and her supervisor met for her mid-year performance reviews. The supervisor placed Complainant on notice that she was "on target" in four of the elements but rated Customer Service element as a "focus for improvement."
At the end of the rating period, employee performance in each of the five performance elements is rated as either "exceeds expectation," "meets expectations" or "unacceptable." The AJ noted that the "exceeds expectations" rating "clearly demonstrates a level of achievement that exceeds to an exceptional degree the performance standards for meets expectations performance. Performance at this level greatly exceeds what is normally required of the job such that it is deserving of special recognition." As for the "meets expectations" rating, it "completely meets the performance standards. Essentially performance is right on target."
The rating received in three or more of the five elements is the employee's overall performance rating. The Agency's performance evaluation policy permits, but does not require, an employee to provide a self-assessment to her supervisor summarizing work accomplishments. Before her 2010 evaluation, Complainant submitted a self-assessment to her supervisor describing her performance in each of the rated elements.
On December 21, 2010, the supervisor signed Complainant's performance evaluation for the rating period June 1, 2010 to November 30, 2010, which rated Complainant at the "meets expectations" level for "Quality of Work," "Customer Service" and "Communication," and at the "exceeds expectations" level for "Job knowledge" and "Completing tasks," which amounted to an overall rating of "meets expectations" and a performance award of 16 hours of additional paid leave. The Director concurred in the supervisor's rating of Complainant. The next day, December 22, 2010, Complainant and the supervisor met to discuss her evaluation, and Complainant signed the evaluation on the same day.
On December 23, 2010, Complainant met with the Director. Complainant requested that her overall rating be raised to "exceeds expectations." The Director suggested that Complainant discuss the matter with the supervisor, because he was the rating official. On January 3, 2011, Complainant again met with the supervisor to discuss the evaluation and request an increased rating. The supervisor declined the change the rating.
The AJ noted in his affidavit, the supervisor stated that he gave Complainant an overall rating of "meets expectations" because her performance was essentially right on target. The supervisor stated that based on his observations and those reported to him by staff and audit clients indicated that Complainant's communication skills did not "exceed expectations." For instance, the supervisor observed Complainant raising her voice, interrupting others employees, and becoming confrontational during meetings. The supervisor stated that he also received complaints about Complainant's communication from other Agency officials including the Chief Financial Officer.
Further, the supervisor stated that the PRB team members often complained to him that Complainant was confrontational, withheld information, and ignored their ideas. The supervisor stated that on one unspecified date, Complainant did not follow his request that she reschedule a meeting win order to accommodate several high-ranking officials, including the Deputy Assistant Attorney General. The supervisor stated that Complainant initially objected, then later changed her mind and proceeded with the original schedule. The supervisor stated that an hour before the meeting was about the take place, he learned that Complainant had not postponed it as she had said she would, and the attendees who arrived for the meeting had to be turned away and were informed that the meeting was being rescheduled. The supervisor considered Complainant's undue delay indicated poor communication and job performance.
Moreover, the supervisor stated that Complainant's race, sex, age, and prior protected activity were not factors in his decision to give her an overall rating of "meets expectations."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for giving her an overall rating of "meets expectations." The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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, she 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 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.
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. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for Complainant's non-selection. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
June 29, 2016
__________________
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
0120140629
2
0120140629
7
0120140629