0120055879
12-07-2006
Lois B. Hofmann, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Lois B. Hofmann,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01200558791
Hearing No. 370-2005-00153X
Agency No. 040009
DECISION
On September 9, 2005, complainant filed an appeal from the agency's
August 5, 2005 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.
The record indicates that complainant filed an EEO complaint on December
11, 2003. Complainant alleged discrimination on the bases of race
(White) and sex (female) in violation of Title VII when: (1) she was not
selected for the position of Director of the Treasury Complaint Center,
ES-0260-04; (2) she was not selected for a Transition Manager position
on August 9, 2003; (3) a decision was made to announce the Mega-Center
Director (Operations Manager) position as a GS-15, rather than as a
Senior Executive Service (SES) position, with a post of duty in Dallas,
Texas; and (4) the agency eliminated the possibility of a position for
her in the Mega-Center. Complainant also alleged discrimination on the
bases of race and sex, as well as retaliation for prior EEO activity
in violation of Title VII when she was denied an award following her
departure from the agency on August 30, 2000.
The record indicates that during the period at issue, complainant was
the Director of the agency's Complaint Center in Oakland, California.
The agency then decided to close three of the four Complaint Centers
and consolidate operations at the remaining Center, to be renamed a
"Mega-Center" located in Dallas. On February 23, 2003, the agency posted
a vacancy announcement for the Director position of the Dallas Center.
Complainant applied for the position and with three (3) other applicants
was rated and ranked as "Best Qualified." On June 7, 2003, the agency
notified complainant that it had decided not to fill the position at that
time and no selection was made. On June 23, 2003, complainant and other
agency managers were notified of an Interim Director (D1; Black female)
of the Mega-Center. Subsequently, the agency notified employees that D1
would not be serving as the Interim Director, but would be conducting
a validation study of the agency's Complaint Centers with respect to
direction and staffing. In July of 2003, an Interim Report recommended
that a Senior Manager be designated as the "Transition Manager" to
implement the recommendations of the study.
On July 28, 2003, complainant expressed interest to D1 in being appointed
the transition manager; however, it was announced in August of 2003
that the EEO and Diversity Field Services Associate in Dallas (T1;
Black male) had been appointed as the transition manager. On August
25, 2003, complainant contacted D1 and protested the appointment of T1,
stating that her qualifications were superior to those of T1.
On October 14, 2003, the Dallas Mega Center Director's position was
announced at a GS-15 level; complainant did not apply for the position
for which T1 was selected (a non-SES position). From November of 2003
through September of 2004, complainant and others were detailed to
the Bureau of Customs and Border Protection, and in August of 2004,
complainant became an employee of that agency. Complainant believed
that she would be given a performance award/bonus as she had been in
previous years, but T1 later told complainant that she would not be
given an award as she was no longer an IRS employee.
Believing she was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned EEO complaint. 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 determined that the complaint did not warrant
a hearing and over the complainant's objections, issued a decision
without a hearing on July 13, 2005. 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.
The AJ considered complainant's allegations individually. Addressing
complainant's allegation (1), the AJ found that the record was devoid of
any evidence other than complainant's speculation that the cancellation
of the SES-level position was for reasons other than those stated by the
agency, and was not due to her race or sex. The AJ noted the statement
of the agency that the position was canceled as rather than having an
SES position and an Operations Director, the duties of the positions
were combined into a new GS-15 Operations Director position. The AJ
found that there was no evidence in the record to support complainant's
allegations that D1 was involved in the cancellation of the announcement.
Regarding complainant's allegation (2), the AJ noted that T1 was given
transition manager responsibilities as he was already working for D1
in Dallas. The AJ found that while complainant attempted to rebut the
agency's articulated reasons for its actions through the testimony of
agency officials, the appointment of T1 was neither illogical under the
circumstances nor discriminatory.
Addressing complainant's allegation (3), the AJ noted that because
complainant did not apply for the Dallas Mega-Center Director position
when it was announced in October of 2003, she could not establish
that she was discriminated against when another person was selected.
The AJ further found that complainant provided no evidence to support her
allegation that locating the position in Dallas, rather than making it a
"duty-neutral" position eliminated her from competing for the position.
The AJ found that complainant could have applied for the position (as did
other applicants from around the country) but she chose not to apply.
The AJ found that, contrary to complainant's allegation, having the
Director position in Dallas was neither illogical not a pretext for
discrimination on the bases of race or sex.
Regarding complainant's allegation (4), the AJ noted that there
was support in the record for complainant's statement that she was
assured a position would be found for her in the Dallas Mega-Center.
However, the AJ found that the two (2) agency officials who made the
announcement left the agency before placing complainant in a position at
the Mega-Center. As such, D1 had no knowledge of the commitment and did
not offer complainant a position as she transferred to a new position
at Customs. The AJ found that there was no evidence which contradicted
D1's explanation or to assume that she would have received an offer at
the Mega-Center which "she would deem acceptable" since she declined
to apply for the Director's position when it was announced. The AJ
concluded that complainant failed to proffer evidence which questioned
the agency's legitimate, nondiscriminatory reasons for not offering
complainant a position at the Mega-Center. Addressing the denial of the
performance award, the AJ noted that complainant was denied an award
pursuant to agency policy, and there was no evidence to suggest that
the agency's legitimate reasons for its actions were more likely than
not a pretext for discrimination. In addition, the AJ found there was
no evidence to contradict the contentions of agency officials that they
were not aware of an award being given to former employees of the agency.
Thus, the AJ found that the agency articulated legitimate reasons for
its actions which complainant failed to demonstrate were pretextual in
nature. As such, the AJ found that complainant failed to establish that
she was discriminated against on the bases of race, sex or retaliation
for the agency's actions in the instant case. The agency then issued a
final order, fully implementing the AJ's finding of no discrimination.
On appeal, complainant has made no contentions regarding the finding of
no discrimination.
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 EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (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 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").
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. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003). The Commission initially
determines that the grant of summary judgment was appropriate, as no
genuine dispute of material fact exists.
We further concur with the AJ's finding that complainant failed to
demonstrate that the agency's actions were due to discriminatory or
retaliatory animus. Addressing complainant's allegation (1), we concur
with the AJ's finding that the record contains no evidence that the agency
cancelled the announcement for the SES position at the Mega-Center due to
complainant's race or sex. The record supports a finding that while the
agency planned to have both an SES position and an Operations Director,
the duties of these positions were combined into a GS-15 Mega-Center
Operations Director position. Investigative Report (IR) at Exhibits 16,
19, 37. Regarding complainant's allegation (2), the record indicates
that T1 was given transition manager duties at the Mega-Center as he was
already working for D1 in Dallas and there was a timeliness issue. IR at
Exhibits 10, 46, 47. We note that D1 stated that many of the functions
of the transition manager needed to be performed in Dallas, which was
a primary reason that T1 was selected. IR at Exhibit 19. As such,
we find that complainant has failed to proffer evidence demonstrating
that she was not selected for the transition manager position due to
discrimination based on race or sex.
Regarding complainant's allegation (3), we concur with the AJ's finding
that complainant did not apply for the Dallas Mega-Center Director
position when it was announced, and thus she cannot establish that she
was discriminated against when she was not selected for the position.
AJ's Decision at 8. Further, complainant proffered no evidence suggesting
that locating the position in Dallas as opposed to another location
eliminated the opportunity for her to compete for the position.
The evidence establishes that complainant was not precluded from
applying for the Director position, but she chose not to. As found
by the AJ, the decision to locate the Mega-Center Director on-site in
Dallas was not illogical or a pretext for discrimination due to race
or sex. Regarding complainant's allegation (4), we note that the AJ
found there was support in the record for complainant's allegation that
she was assured a position would be found for her in the Mega-Center.
However, the record indicates that D1 was not aware of this commitment,
and she did not offer complainant a position at the Mega-Center as she
transferred to a permanent position in another agency. IR at Exhibit 10.
We concur with the AJ's finding that there was no evidence contradicting
D1's statement, or to find that complainant would have accepted a position
at the Mega-Center had one been offered to her. AJ's Decision at 9.
Finally, we concur with the AJ's finding that complainant failed to
establish that she was not given a cash award following her departure from
the agency due to discriminatory or retaliatory animus. The statements
of agency officials establishes that complainant was not given an award
by the agency as she was no longer employed by the agency, pursuant to
agency policy. IR at Exhibits 11, 13, 64. Contrary to complainant's
allegation, there was no evidence in the record that former employees of
the agency were given cash awards. Id. As such, we concur with the AJ's
finding that complainant failed to establish that she was discriminated
against due to her race or sex, nor did she demonstrate that the agency
retaliated against her for prior EEO activity.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and the agency's response, we AFFIRM the agency's
final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
____12/07/06________________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
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0120055879
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055879