0120150275
04-28-2017
Marvella B.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marvella B.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120150275
Hearing No. 570-2012-00028X
Agency No. OBD-2011-00018
DECISION
On October 27, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 21, 2014, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether: (1) an Equal Employment Opportunity Administrative Judge's (AJ) decision to issue a decision without a hearing was proper; and (2) whether Complainant established discrimination by preponderant evidence based on race, color, and disability.
BACKGROUND
During the period at issue, Complainant worked as a Litigation Support Specialist, GS-11, within the Agency's Tax Division located in Washington, D.C. On January 24, 2011, she filed a formal complaint on the above-mentioned bases when the Agency requested permission from the Office of Personnel Management (OPM) to offer an early incentive payment (or early buy-out) but failed to inform her before she retired. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge. Complainant requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to the AJ. On October 4, 2012, the Agency submitted a Motion for Summary Judgment (Agency Motion) to the AJ. Complainant responded on October 25, 2012, asking the AJ to deny the Agency's Motion.
On September 8, 2014, the AJ granted the Agency's motion, and thereafter issued a decision finding that Complainant did not establish discrimination as alleged. On October 21, 2014, the Agency issued a final order adopting fully the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ should have found an inference of discrimination when the Agency failed to approve her telework request (which she describes as a request for reasonable accommodation)2 and immediately posted her job for hiring after she informed the Agency, in January 2010, of her intention to retire that year. She further contends that the Commission should overturn the AJ's granting of the Agency's Motion as the Agency was aware that the early incentive buyout plan was being considered by OPM when she first announced her intention to retire. Complainant goes on to contend that the AJ erred in accepting as credible the Agency's reasons for not informing her of the upcoming early incentive buyout before she retired.
Complainant also contends that the AJ erred in finding credible conflicting Agency witness statements while rejecting statements provided by her witnesses. She further contends that the AJ erred in rejecting valid comparator evidence of other employees of different races and who were without disabilities who were informed about the early incentive buyouts. Finally, she contends that the AJ erred when she inferred that the failure to inform her of the early incentive buyouts was an "error in judgment" rather than an act of discrimination.
For its part, the Agency contends that the AJ properly refused to draw inferences of discrimination from Complainant's incomplete reasonable accommodation requests, the Agency's reasonable attempts to fill Complainant's position when she initially announced her intention to retire, and the Agency's failure to inform Complainant about a pending request to OPM regarding early retirement buyouts. The Agency further contends that the AJ correctly found that comparator evidence and witness testimony proffered by Complainant were inadmissible. For these reasons, the Agency requests that the Commission uphold the AJ's decision without a hearing and find in favor of the Agency regarding the Complainant's allegations of discrimination.
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 also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (if an AJ's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
Contentions on Appeal
Regarding Complainant's contentions on appeal, the Commission notes that AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that there was an abuse of the AJ's discretion in these matters.
Decision to Issue a Ruling without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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 holding a hearing only after determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. We also note that the Agency's Motion, which contains a comprehensive statement of the undisputed facts, was submitted to the AJ on October 4, 2012, and that Complainant submitted her response thereto on October 25, 2012. The Agency replied to Complainant's response on November 5, 2012. Upon review, we find that the AJ's decision to issue a ruling without a hearing was proper.
Discrimination
Complainant alleges discrimination based on race, color, and disability when she not informed of the Agency's pending request to OPM for permission to offer early incentive buyouts. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is generally a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256.
We presume, without so finding, that Complainant established prima facie cases of race, color, and disability. Next, we must consider the Agency's explanations for the action alleged to be discriminatory. The Agency's burden to articulate a legitimate, nondiscriminatory reason for its action is not onerous. The Supreme Court explained that an [Agency's] explanation for its action must be "legally sufficient" to justify a judgment for the Agency. Id. at 255. The Commission has interpreted the term "legally sufficient" to mean that the reason set forth is of sufficient clarity as to allow the employee a full and fair opportunity to demonstrate pretext. See Parker v. U.S. Postal Serv., EEOC Request No. 05900110 (Apr. 30, 1990). Further, the Commission has held that, although the Agency's burden of production is not onerous, the Agency must provide a specific, clear, and individualized explanation for the action that affected the employee. See Teresita v. Dep't of Defense, EEOC Request No. 05950931 (Nov. 6, 1997).
We now look to see whether the Agency provided a legitimate, nondiscriminatory reason for the action alleged to be discriminatory. The ROI reflects the following relevant facts.
In January 2010, Complainant initially informed her first and second line supervisors, S1 and S2, respectively, of her intention to retire. See ROI at 80. In March 2010, Complainant informed S2 that she was not going to retire. See ROI at 81. On July 15, 2010, Complainant informed S2 that she planned to retire on July 31, 2010. On that date, she officially retired from the Agency. See ROI at 76, 169-172.
On July 12, 2010, the Agency's Tax Division submitted a request to the Agency's Justice Management Division (JMD) to allow certain employees within the Tax Division to be offered voluntary early retirement (VERA) and voluntary separation incentive payments (VSIP), also known as early buy-outs. Complainant's position was one of the jobs included in the request. See ROI at 190.
On July 22, 2010, JMD approved the request and forwarded it to OPM for further consideration. The Agency did not notify the Union of its request despite its obligation to do so pursuant to an agreement. On September 14, 2010, a Human Resources Officer (HRO) was notified by email that the request at issue had been granted. The approval was officially confirmed in a September 15, 2010 Memorandum from JMD to the HRO. That same day, the Acting Assistant Attorney General in the Tax Division notified, via email, all Tax Division employees that OPM had granted its request to offer early incentive buy-outs. Though Complainant had already retired from the Agency, she learned of the buy-outs from colleagues in the Tax Division. See ROI at 79.
The Agency stated that employees in general were not provided information about the pending early buy-out until it had been officially approved by OPM. Several management officials provided their recollections as to why this was the case. S3 stated that staff were not informed of the pending early buy-out because, as of the Agency's July 22, 2010 request to OPM, management had no reason to believe that the request would be granted especially considering evidence that similar requests from other Agency Departments had not be viewed favorably by OPM. S4 stated that employees were not informed of the matter because the early buy-out request was made to reduce the Tax Division's payroll costs for fiscal year 2011. S5 stated that employees were not informed because the early buy-out option was more likely to be accepted if employees were given a short amount of time to accept the Agency's offer. The HRO stated that employees were not informed because "even the hint of a potential buy-out" would likely generate concern among employees that a reduction-in-force was soon to follow. Based on these reasons, we find that the Agency has articulated legitimate, nondiscriminatory explanations as to why Complainant (and employees in general) were not informed of the buy-out until it gained OPM approval.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on race, color, and disability.
In her attempt to show pretext Complainant points to what she describes as the Agency's conflicting explanations for the action alleged to be discriminatory. However, the Commission finds the reasons proffered, though different, do not conflict each other but are merely complementary in nature. Although Agency officials provided varied opinions for why there was a need not to inform the employees about the buy-out request until they were officially approved by OPM, we find no persuasive evidence that a desire to discriminate against Complainant because of her race, color or disability played any role in the Agency's actions. Complainant points to an employee who had notified the Agency of her intention to retire sometime in 2011, and was informed of the early buy-out option. This allowed her to withdraw her retirement notice and re-file it after the Agency's early buy-out request became official. We note, however, that this employee worked in a different Division than Complainant and therefore, like the AJ, we find that she was not a suitable comparator to Complainant.
Complainant's remaining attempts to show pretext are not based on probative evidence but rather mere allegations and subjective beliefs to demonstrate that race, color, and disability were factors in the decision not to inform her of the Agency's pending request to OPM to offer early buy-outs. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). That is especially so in this case where Complainant did not provide the Commission with any evidence that employees in her Division who were outside of her protected groups were generally given information regarding the Agency's early-buy-out request during its pending stage while employees within her protected classes were not given the information. Based on our review of the ROI, we find that Complainant did not meet her burden to show pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a ruling without a decision was proper. We further find that Complainant did not establish discrimination based on race, color, and disability. We hereby AFFIRM the Agency's final order.
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
__4/28/17________________
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 The sole issue before the Commission is whether the Agency's failure to inform Complainant of a pending early retirement buy-out incentive was discriminatory. If Complainant believes the Agency discriminated against her when her reasonable accommodation request was denied, she should contact and EEO counselor on this matter.
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