0120170650
10-10-2018
Maye M.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Security Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maye M.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Security Service),
Agency.
Appeal No. 0120170650
Hearing No. 570-2014-01010X
Agency No. DSS13014
DECISION
On December 9, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 5, 2016, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether Complainant established that she was discriminated against based on a series of events which created a harassment/hostile work environment based on race (African-American), sex (female), age (47) and/or reprisal for prior EEO activity when she was: 1) excluded from participating in major conferences and training events; 2) her immediate supervisor yelled at her; she was given menial tasks that were not commensurate with her skills and education levels; she was denied training opportunities in 2012; she was denied the opportunity to perform Contract Officer Responsibilities (COR); 3) she was threatened with adverse action; was subjected to the processing of a Memoranda of Understanding that could have eliminated her role in the process; requested to do additional tracking elements for the Memorandum of Understanding processes; was again not assigned COR duties; a position for which she was a candidate was cancelled; she was issued a letter of informal reprimand; and 4) she was forced to resign as a result of continual harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GG-2210-13 at the Agency's Office of Designated Approving Authority (ODDA), Industrial Operations, Defense Security Service ("DSS") facility in Quantico, Virginia.
Regarding Claim 1, Complainant's alleged that she was excluded from participating in major conferences and training events. The Agency denies the allegation. The Agency stated that Complainant's responsibilities included information security inspections/reviews, plan reviews, training/instruction, maintaining IT proficiency, management of information systems, and other duties as assigned.
The Agency further stated that Complainant was approved for numerous training requests between 2011 and 2013. Complainant attended several conferences. In 2011, Complainant attended a two-week Fundamentals of Industrial Security course, and spent six weeks traveling and training in the Virginia Field Office in Virginia Beach. In 2012, Complainant spent approximately 240 hours in training or attending conferences. She completed a five and a half day SANS "Network Forensics" course, a three-day USDA Graduate School course "Speaking with Confidence, "the annual four-day DoDUS information assurance conference, a two-week CISSP course, a three-day National Security Institute (NSI) annual conference at which she briefed a topic and attended the remainder of the training. Complainant also attended a regional all-hands training meeting in April 2020. In 2013, Complainant completed a five (5) day Office of Personnel Management Leadership Assessment Course, and attended the NSI conference where she again briefed a topic and attended the remainder of the training sessions.
The record shows that the only denial Complainant received was when she requested to attend the OPM "Conflict Resolution" course in Aurora, Colorado. Due to the federal budget crisis at that time, there was insufficient money available for non-mission related training or travel.
Regarding 2(a), that Complainant's immediate supervisor yelled at her, Complainant was assigned to complete several assessments. Her supervisor stated that Complainant refused to complete the assessments. Her supervisor stated that he was "firm" with her. He advised her that the assignments were legitimate, were part of her position description, and that any failure to complete them could result in possible disciplinary actions. The record also notes that during Complainant's deposition, she stated "I wouldn't say he yelled at me [in 2012]."
Regarding Claim 2(b), Complainant claimed that she was given menial tasks that were not commensurate with her skills and education levels. The record shows that the requirements to perform those tasks were in her position description. The record also indicates that other Information Systems Professionals at the same grade as Complainant were subject to the same position description requirements, assigned the same tasks and were performing those tasks.
Regarding Claim 2 (c), Complainant claimed that she was denied training opportunities in 2012. The Agency denies that Complainant did not receive various training opportunities, as described above in response to Claim 1.
Regarding Claim 2 (d), Complainant's claimed that she was denied the opportunity to perform COR duties and assignments. Complainant had not completed her assigned assessments. Her supervisor insisted that she complete that assignment. Therefore, she was not permitted to perform COR duties because her assessments assignment had not been completed.
Regarding Claim 3 (a), the Chief of Staff threatened Complainant with adverse action on March 14, 2013. The Agency maintained a record of the conversation. The Chief of Staff stated that he did not threaten Complainant, but spoke to her after learning that she refused to complete certain assignments, namely the review/conduct audits, that all field-level ISSP's conducted before they were sent to headquarters for processing. He explained to Complainant that even if the assignments were not specifically set out in her job description, as she alleged, that it was legitimate work which still needed to be done because it fell within the scope of the Division's responsibility. He told Complainant that if she refused to do the work, that was within her Division's responsibility, she would probably receive verbal counseling, then a written counseling, written reprimand, then removal.
Regarding Claim 3 (b) and (c), Complainant contended that the Chief of Staff's processing of a "Memoranda of Understanding" could have eliminated her role in the process, the Chief of staff stated that the change "did not eliminate Complainant's role. He changed it to improve the "Memoranda," and Complainant continued to be responsible for completing additional tracking elements and weekly reports.
Regarding Claim 3 (d), Complainant was again not assigned COR duties. The Chief of Staff selected other employees. Complainant did not provide any information explaining why she thought this matter was discriminatory.
Regarding Claim 3(e) a position was cancelled for which Complainant was a candidate. The Agency implemented a hiring freeze for all open positions except for leadership positions. Complainant was not applying for a leadership positon.
Regarding Claim 3 (f), Complainant stated that she received a letter of informal reprimand on August 21, 2013. The Agency denies that Complainant was issue a letter of informal reprimand. The Agency stated that it was a Letter of Explanation, clarifying her duties and responsibilities. The letter also explained that her failure to abide by the expectations contained in the letter could lead to formal disciplinary action.
Regarding Claim 4, Complainant was "Constructively Discharged" when she was "forced to resign as a result of continual harassment." The Agency contends that Complainant failed to establish that the conduct at issue rose to the level required for establishing a constructive discharge.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing, and, over Complainant's objections, issued a decision without a hearing on September 30, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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) (providing that an administrative judge'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
At the outset, we note that Complainant filed a Motion to Amend her complaint on February 2, 2015. The AJ denied the motion to amend because some allegations were spin-off complaints and others were untimely. Because this matter was not specifically contested on appeal, we will not the denial of the motion further in this decision.
We must 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). 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).
Upon review of the record, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. See McDonnell Douglas, 411 U.S. at 802: Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine. 450 U.S. 248. 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on race, sex, age and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for each its actions about which Complainant complains. We find no persuasive evidence of pretext here. The Agency provided evidence and explanations demonstrating that Complainant's allegations of adverse treatment were unsupported by evidence. For example, the Agency proved, by a preponderance of the evidence of record, that Complainant was given many opportunities for training and growth. With respect to Complainant's harassment claim, the actions about which she complains do not support a finding of discriminatory harassment, but, instead, simply constitute normal, everyday workplace interactions and reactions to supervisory decisions, nor do we find that these matters were severe or pervasive enough to rise to the level of harassment. Consequently, Complainant's constructive discharge must fail.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__10/10/18________________
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.
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0120170650