0120070454
02-02-2009
Lisa V. Cook, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Lisa V. Cook,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120070454
Hearing No. 100-2005-00865X
Agency No. 035631
DECISION
On October 17, 2006, complainant filed an appeal from the agency's
September 25, 2006 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission affirms the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Patent Examiner, GS-13, at the agency's Arlington, Virginia facility.
On April 11, 2003, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
national origin (American), sex (female), color (Black), and in reprisal
for prior protected EEO activity when:
1. on January 28, 2003, management barred her from the Increased
Flexitime Program;
2. on January 29, 2003, management issued her a Notice of Confirmed
Oral Warning;
3. on February 24, 2003, management denied her a within-grade
increase;
4. on March 3, 2003, management changed her performance rating to
"unacceptable";
5. on November 3, 2003, management rated her "unacceptable" for
FY03;
6. on November 19, 2003, management placed her on a performance
improvement plan (PIP);
7. on February 5, 2004, management denied her request for a
transfer;
8. on February 14, 2004, complainant's supervisor (S1) began
reviewing all of complainant's work while other employees continued to
report to the primary patent examiner;
9. on February 14, 2004, management placed her on a "workflow
program";
10. on February 24, 2004, management denied her a within-grade
increase;
11. on April 14, 2004, management issued her a Notice of Confirmed
Oral Warning;
12. on April 30, 2004, management rated her "unacceptable" in every
element of her mid-year review;
13. on May 3, 2004, management issued her an Oral Warning;
14. on October 28, 2004, management rated her as "unacceptable"
for FY04; and
15. on November 23, 2004, management issued her a Written Warning
for Unacceptable Performance.
At the conclusion of the investigation, complainant was provided 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 AJ assigned to the case found that, after
viewing the evidence in the light most favorable to complainant, a
decision without a hearing was appropriate as there were no genuine issues
of material fact in dispute. Specifically, the AJ found that assuming,
arguendo, complainant established a prima facie case of race, national
origin, sex, color, and reprisal discrimination, the agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions that
complainant failed to show were pretextual. The AJ issued a decision
on August 30, 2006, finding no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
On appeal, complainant argues at length that the AJ erred in issuing a
decision without a hearing. Complainant also reiterates her contention
that she was subjected to unlawful discrimination and alleges that the
agency's articulated reasons for its actions are not worthy of belief.
Complainant further contends that the AJ "failed abysmally in his duties
to provide [complainant] with a fair process before dismissing her case"
and requests that the instant case be remanded to a different AJ for a
hearing.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from an agency
decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. 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). She must generally 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). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley
v. Department of Veterans Affairs, EEOC Request No. 05950842 (November
13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
Here, we concur with the AJ's finding that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The record
reflects that on January 29, 2003, complainant's supervisor (S1) issued
complainant a Notice of Confirmed Oral Warning, indicating that her
performance in the area of "workflow" was at the unacceptable level.
As a result of complainant's performance in a critical element falling
below the "fully successful" level, complainant was removed from the
Increased Flexitime Program, in accordance with agency policy and
the terms of the program. Additionally, complainant's unacceptable
performance resulted in a denial of her with-in grade increase on March
18, 2003. Complainant's conclusory statements that her performance
was outstanding notwithstanding, the record shows that complainant's
work product was reviewed by S1, Director of Technology Center,
the Primary Patent Examiner, and the Quality Assurance Specialist,
all of whom concurred with S1's assessment that complainant's work was
unacceptable for an employee at her grade level. The record also shows
that complainant's performance failed to improve and continued at the
unacceptable level despite management's attempts to bring her performance
back to the successful level. We find that the record clearly shows that
all of the agency actions raised in the instant complainant were the
result of complainant's unacceptable performance, and were consistent
with agency policy. We further find that the record is devoid of any
evidence from which a reasonable fact-finder could conclude that the
agency's actions were motivated by discriminatory or retaliatory animus,
and we concur with the AJ's finding that complainant failed to show she
was discriminated against as alleged.
Finally, despite complainant's contention on appeal, we find no abuse
of discretion by the AJ. Accordingly, we find that viewing the record
evidence in the light most favorable to complainant, there are no genuine
issues of material fact. We further find that the AJ appropriately
issued a decision without a hearing finding no discrimination.
Therefore, we discern no basis to disturb the AJ's decision and the
agency's final order 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
February 2, 2009
Date
2
0120070454
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070454