0120081572
09-09-2011
Joynecia Clements, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Joynecia Clements,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120081572
Hearing No. 410-2007-00290X
Agency No. HHS-CDC-0154-2006
DECISION
On February 13, 2008, Complainant filed an appeal 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. The EEOC Administrative Judge (AJ)
issued a decision on December 12, 2007, and there is no evidence that
the Agency issued a final order implementing his decision. Complainant
filed her appeal within 30 days of the date the AJ’s decision became
final under 29 C.F.R. § 1614.109(i). Therefore, the Commission deems
the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s presumed
final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly issued a
decision without a hearing finding that Complainant had not established
that the Agency discriminated against her based on her sex when she was
not selected for a position for which she had applied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Public Health Analyst, GS-0685-12, in the Agency’s Program Management
Office, Prevention Program Branch, National Center for HIV, STD, and
TB Prevention, at the Centers for Disease Control and Prevention, in
Atlanta, Georgia.
On December 27, 2006, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of sex (female) when:
1. On August 14, 2006, she became aware that she was not selected for the
position of Public Health Analyst, GS-0685-12/13, vacancy announcement
number CDC-T3-2006-0288; and
2. On January 20, 2006, she was advised by the branch chief that she
was not selected for a GS-0685-12/13 Public Health Analyst Position.
On January 23, 2007, the Agency issued a letter of partial acceptance
and partial dismissal of Complainant’s complaint. The Agency accepted
issue 1 for investigation. It dismissed issue 2 under 29 C.F.R. §�
�1614.107(a)(2), as being untimely raised with an EEO Counselor.
Complainant’s EEO contact was on August 8, 2006, which was well beyond
45 days from the date of the discriminatory event in issue 2.1
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing.
The Agency filed a Motion for Summary Judgment on October 9, 2007.
Complainant did not file any response or objection to the Agency’s
Motion. The AJ assigned to the case granted the Agency’s Motion for
a decision without a hearing, and issued a decision without a hearing
on December 12, 2007. When the Agency failed to issue a final order
within forty days of receipt of the AJ’s decision, the AJ’s decision
finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged became the Agency’s final action pursuant
to 29 C.F.R. § 1614.109(i).
In his decision, the AJ found that a decision without a hearing was
appropriate, as no material facts were in dispute, and no issues
of credibility needed to be resolved in order to reach a decision.
He found the following facts to be undisputed. Complainant was employed
at the Agency as noted above, in the Prevention Program Branch, which
consisted of a Program Management Office and four HIV Prevention teams.
Complainant was in the Program Management Office. The Agency advertised
for a Public Health Analyst, GS-0685-12/13, to fill openings on the HIV
Prevention teams, and the vacancy announcement stated that more than one
position may be filled by the announcement. Complainant applied at both
the GS-12 and GS-13 levels. The Agency conducted two rounds of interviews
for the position, using two different interview panels. After the first
round of interviews, conducted by prospective peers of the selectees,
Complainant had the highest score of four interviewees. After the second
round of interviews, conducted by a management panel of three GS-14 team
leaders and the GS-14 Deputy Branch Chief, Complainant had the fourth
highest score. The selecting officials, the Deputy Branch Chief and the
Branch Chief, selected the three highest scoring candidates, noting that
there was a “natural break” between the scores of the three highest
interviewees and the next highest interviewee, Complainant. The three
selectees were a male at the GS-13 level (a lateral reassignment),
a female at the GS-13 level, and a second female at the GS-12 level,
whose offer was subsequently withdrawn when it was discovered that she
was not actually eligible for the position. The Agency decided not to
fill any more openings.
The AJ found that Complainant had not provided any direct evidence of
discriminatory intent. He also concluded that she had not established
a prima facie case of sex discrimination, as one of the two final
selectees was a female, and the male selectee was not a similarly-situated
comparator, as he was already a GS-13 level employee. Because Complainant
was a GS-12 at the time of the selection, the AJ found that the male
selectee was not a “equally or less qualified male employee” and
therefore, not similarly situated. He also concluded that Complainant had
not shown herself to have comparable or superior qualifications to those
of the male selectee. The AJ concluded that Complainant had not shown
that she had been subjected to discrimination on the basis of her sex.
CONTENTIONS ON APPEAL
Complainant did not file any contentions in support of her appeal,
except to note that neither Complainant nor her representative received
a final order, and any determinations of the timeliness of her appeal
should take that into account. The Agency did not file any statement
or brief in response to Complainant’s appeal.
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 EEO MD-110, at Chap. 9, § VI.B. (providing that
an administrative judge’s “decision to issue a decision without
a hearing pursuant to [29 C.F.R. § 1614.109(g)] will 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 Chap. 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
Decision without a hearing
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);
Murphy v. Dep’t of the Army, EEOC Appeal No. 01A04099 (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).
We find that the AJ properly issued a decision without a hearing, as there
were no material facts in dispute such that the AJ would need to resolve
those disputes through the taking of evidence or observation of witnesses.
The AJ viewed the evidence in the record at the time of his decision
in the light most favorable to Complainant, and drew all inferences in
Complainant’s favor. Complainant did not argue to the AJ, or on appeal,
that it was improper for the AJ to issue a decision without a hearing.
Disparate treatment
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish 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 Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was
discriminated against as alleged. Even assuming that Complainant had
established a prima facie case of sex discrimination, we find that
the Agency has articulated legitimate, nondiscriminatory reasons for
not selecting Complainant for one of the vacant Public Health Analyst
positions. The Personnelist for the Branch testified:
Since [the Branch Chief] joined PPB, he has always been adamant about
selecting project officers who possessed certain background experience
and specific skill sets. He used this criterion (e.g., experience in
the field - health department or community-based organization) with each
project officer selection made before or since this interview process. He
has maintained that [Complainant] did not have the program experience
necessary for this position. To my knowledge he has never hired anyone
who has not had field experience.
The Branch Chief explained that the male selectee was more qualified
than Complainant, and thus scored higher in the interviews, stating:
In addition, [Complainant] had limited experience working with core
public health prevention elements (operations, surveillance, clinical,
public health education, etc.) at the local or community public health
level. A key responsibility for project officers serving in the Prevention
Program Branch relates to providing technical assistance on core public
health prevention elements.
We do not find that Complainant has shown the Agency’s reasons to
be pretext for discrimination. She has not argued that she was more
qualified than the male selectee, and the fact that two females were
also initially chosen for the vacancies undercuts any inference of
discrimination that could be drawn.
CONCLUSION
Based on a thorough review of the record and in the absence of any
contentions on appeal, we AFFIRM the AJ’s finding that Complainant had
not established that discrimination occurred as alleged, which became
the final order of the Agency.
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 (Nov. 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
September 9, 2011
Date
1 We note that, on appeal, Complainant did not contest the dismissal
of this issue. Accordingly, we exercise our discretion to review only
those issues directly raised on appeal. See EEO Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, § VI.A. (Nov. 9, 1999).
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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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0120081572