0120080972
10-02-2009
Joann T. Phillips, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.
Joann T. Phillips,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120080972
Hearing No. 570-2007-00017X
Agency No. ASE-06E-11
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), sex (female), and color (black) when, on November
15, 2005, complainant received a less than favorable evaluation score
on her annual evaluation, alleging an ongoing pattern of discrimination
with evaluation scores consistently lower than her peers.
During the relevant time, complainant was employed as a Program Management
Execution Officer with the agency. From April 2003, to February 9,
2005, complainant worked in the Exploitation Division of the Acquisition
Systems Office (ASEE). On February 9, 2005, at complainant's request,
she was transferred from ASEE to the agency's Consumer Branch of the
Acquisition Systems Office (ASEC). After she was transferred to ASEC,
Supervisor 1, became her first-level supervisor.
Following an investigation of her complaint, complainant requested a
hearing on her case before an EEOC Administrative Judge (AJ). On October
22, 2007, an AJ issued a decision without a hearing finding that there
was no genuine issue of material fact in dispute, and concluded that
complainant had not been discriminated against as alleged. Specifically,
the AJ found the agency presented legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut. Moreover,
the AJ found complainant was also alleging that she was subjected to
discrimination with regard to her 2003 and 2004 ratings, which the AJ
found were discrete incidents which were not timely raised with an EEO
Counselor. On December 6, 2007, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, we find the issuance of a decision without a hearing was
proper as no genuine issues of material fact are in dispute. We find
the agency articulated legitimate, nondiscriminatory reasons for its
action.1 The agency stated that, in completing complainant's September
2005 performance appraisal, management only considered complainant's
performance during the applicable rating period. The agency said that,
after complainant's February 2005 transfer, complainant's first-level
supervisor of record for the annual rating period at issue, Supervisor 1,
stated that, in formulating complainant's evaluation, she relied on her
personal first-hand knowledge and observation of complainant's work during
the relevant period. Supervisor 1 claimed that, although complainant
met and fulfilled the basic requirements of her position, complainant
failed to take the initiative on projects and, unlike the comparators,
only performed a minimum amount of extra work during the rating period.
Supervisor 1 asserted that the comparators were consistently more
proactive in the performance of their duties than complainant and
performed significantly more complex duties than complainant.
Additionally, the agency argued that it partially attributed complainant's
score to an institutional change to its employee annual performance
evaluation process. The agency stated that prior to the 2005 rating
period, it changed its evaluation practice to ensure that the entire
ASEC department would maintain an average total weighted performance
rating of 430 for any given evaluation period. The agency explained
that it changed the process to halt the inflation of the employee annual
performance evaluation scores that occurred in previous years, which
began to affect salary, bonus and promotion decisions. Supervisor 1
claimed that the change in the annual performance evaluation process
contributed to complainant's lower 2005 score.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for the decision not
to reinstate complainant. Complainant failed to show, by a preponderance
of the evidence, that she was discriminated against on the bases of race,
sex or color.
The agency's decision finding no discrimination is AFFIRMED.
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
October 2, 2009
__________________
Date
1 Since complainant does not challenge on appeal the AJ's decision that
her 2003 and 2004 performance reviews were not timely raised with an
EEO Counselor, and we see no error in the AJ's dismissal, we need not
alter the AJ's finding.
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0120080972
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013