Mercedes A.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.Download PDFEqual Employment Opportunity CommissionApr 25, 20180120160625 (E.E.O.C. Apr. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mercedes A.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 0120160625 Hearing No. 570-2014-00668X Agency No. HS-11-FEMA-00116 DECISION On November 28, 2015, 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 November 2, 2015, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Specialist, GS-303-11/12, for the Office of the Chief Financial Officer, Financial Management Division, FEMA Finance Center (FFC); Financial Services Support Section, Business Operations Unit (BOP), located in Bluemont, Virginia. On August 23, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (54) and reprisal (prior protected EEO activity) when: (1) on April 5, 2011, she learned she was not selected for the position of Supervisory Management Analyst (SMA), Job Announcement M0- 201 l-T0294-EAM-423472DIM; and (2) on October 19, 2011, she met with her supervisor (S1) 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. 0120160625 2 to review her performance appraisal for the 4th quarter of Fiscal Year (FY) 2011 and was stunned to see that she was rated “Less Than Expected” (LTE) on two critical elements.2 After 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. When Complainant did not object, the AJ granted the Agency’s March 12, 2015, motion for a decision without a hearing and issued a decision without a hearing on September 30, 2015. 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. ANALYSIS AND FINDINGS 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) (“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) (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”). 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. 2 The EEOC Administrative Judge (AJ) assigned to Complainant’s case dismissed an additional claim that was initially raised in Complainant’s complaint regarding the Agency’s failure to pay Complainant for a temporary promotion during the time she served as the Acting SMA from February 2009 to December 2009. The AJ dismissed this claim in accordance with 29 C.F.R. § 1614.105(a)(l) because Complainant failed to seek EEO counseling on this issue until May 2011, rendering such contact untimely. We affirm the dismissal of this claim and note that on appeal Complainant has not raised an objection to the dismissal. 0120160625 3 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). 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 Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, we agree with the AJ’s conclusion that Complainant failed to raise a genuine issue of material fact and present sufficient evidence to rebut the Agency’s articulated legitimate, non-discriminatory explanations for the employment actions at issue here. In addition, the record is devoid of evidence to establish discriminatory or retaliatory animus on the part of any responsible official. 0120160625 4 With respect to the non-selection claim, management officials stated that the best qualified candidate was selected based on the information in the applicants’ resumes and answers to interview questions. One selection panel member (P1) noted that the selectee (S1)3 had a bachelor’s degree in business administration and a certification in human resources whereas Complainant had only some college credits but no degree. P1 also explained that Complainant did not receive outstanding ratings during her time acting in the SMA position. Another selection panelist (P2) explained that the selectee answered the interview questions with “much thought and used examples from her prior and current positions to demonstrate her understanding of what the job duties entailed and her ability to successfully accomplish them as well as her ability to lead a team.” P2 further stated that she ranked Complainant fourth out of the four candidates interviewed based on her education, work experience, and the way she answered the interview questions. We agree with the AJ that Complainant failed to present sufficient evidence that her qualifications were superior to S1’s. Complainant asserted that she had significant experience with the human resources functions of the BOP. However, S1’s resume establishes that she had several years of experience in budget formulation and execution, continuity of operations policies and procedures, and facilities management duties. These duties are listed as primary areas of responsibility for the SMA position. As the AJ noted in her decision, other than Complainant’s general disagreement with the Agency’s stated reasons for why S1 was selected, Complainant fails to present any evidence that such reasons are unworthy of credence. Specifically, the AJ noted that Complainant does not suggest that she had a stronger educational background or interviewed better than S1. In addition, Complainant does not dispute that she was rated as “Proficient” (not “Outstanding”) during the time she served as the acting SMA. Complainant states only that S1 was younger than she, and that Complainant had failed to be selected for promotions in the past where younger applicants were selected. We agree that such bare, uncorroborated assertions by Complainant fail to meet her burden of presenting evidence of age or retaliatory animus on the part of any responsible management official with respect to the SMA position at issue herein. In addition, as noted by the AJ, Complainant asserts that S1 was selected because of her close, personal association with the selecting official and interview panel members, which contradicts the assertion that the responsible management officials in the selection process were motivated by discriminatory or retaliatory animus. With respect to Complainant’s 4th quarter FY2011 performance appraisal, S1 explained that she noted areas for Complainant to work on during the previous 3rd quarter evaluation, but that she became more aware of Complainant’s deficiencies during the 4th quarter because S1 was more involved in personnel matters (i.e., Complainant’s primary responsibilities) during that period. S1 thus evaluated Complainant as LTEs in those critical areas rather than “On Target” (OT). S1 stated that the reasons for the LTEs in the 4th quarter evaluation are explained in her narrative remarks attached to the evaluation. The narrative noted that Complainant needed to focus on 3 The selectee became Complainant’s supervisor after her selection to the SMA position. 0120160625 5 improving her attention to detail, the quality of her work, and her organizational skills. In the narrative, S1 also identified and described eight instances where Complainant failed to meet expectations. In addition, S1 noted in her narrative that Complainant needed to stay on top of her emails and stay organized so that deadlines and meetings were not missed. Upon review of the record, we agree with the AJ that Complainant fails to present evidence to support a conclusion that S1’s explanation for Complainant’s LTE ratings are a pretext for discrimination or otherwise motivated by discriminatory/retaliatory animus. Specifically, as the AJ noted, Complainant attempts to explain the various deficiencies noted by S1’s narrative, but does not dispute the fact that many of the errors identified by S1 in the narrative did occur. In addition, the documentary evidence in the record supports S1’s narrative in the appraisal. Moreover, other than bare, conclusory assertions by Complainant, the record is devoid of evidence that S1’s ratings or her comments were motivated by discriminatory or retaliatory animus. CONCLUSION Accordingly, based on a thorough review of the record, and in the absence of any arguments from Complainant in support of her appeal, we AFFIRM the Agency’s adoption of the AJ’s decision which concludes that Complainant failed to present sufficient evidence to warrant a hearing and/or to establish discrimination or retaliation as alleged. 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 0120160625 6 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. 0120160625 7 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 April 25, 2018 Date Copy with citationCopy as parenthetical citation