0120142492
08-16-2016
Micki C.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Micki C.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142492
Hearing No. 540-2012-00053X
Agency No. 8Y1M10020
DECISION
Complainant filed an appeal from the Administrative Judge's decision after the Agency failed to issue a final order concerning her equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Chief of Program Control, at the Agency's Operationally Responsive Space (ORS) facility at the Kirtland Air Force Base in New Mexico.
On December 14, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic/Mexican), sex (female), color (Brown), and age (56) when:
1. On August 20, 2010, management officials did not allow her to have complete supervision over a detailed employee; and
2. On November 7, 2010, management allowed another employee to perform Planning, Programming, Budgeting and Execution (PPBE) duties that overlapped with Complainant's PPBE duties.
Complainant further alleged that Management subjected her to a hostile work environment, when:
3. On April 21, 2010, Complainant was briefed on the results of an investigation concerning her conduct and performance;
4. On April 21, 2010, management officials showed her a proposed letter of reprimand arising from its investigation of her conduct and performance;
5. On June 29, 2010, following a reorganization, management appointed another employee as the Deputy Chief of Operations; and
6. On August 18, 2010, management rated Complainant two out of five on her Fiscal Year 2010 appraisal.
Claim 1 - Supervision of Detailed Employee
The pertinent facts were that Complainant was hired as a Supervisor by the named alleged responsible management official. In 2009, Complainant was promoted to the position of Supervisory Financial Management Analyst. Complainant was responsible for the management of a budget of 150 million dollars a year.
On August 14, 2009, another employee (S) was detailed from the Air Force Research Laboratory (AFRL) to Complainant's unit. It was undisputed that the named employee was employed by the US Air Force Research Laboratories (AFRL) at Kirtland ARB, New Mexico. The employee was on detail to Complainant's unit for a six month period. While she was on detail, the detailed employee received assignments from Complainant and her work was directed by Complainant. All other aspects of S's employment were processed by the AFRL.
The AFRL had the employee's employment attendance and payroll records because she was their permanent employee. She was not transferred to the ORS. Complainant was not allotted complete supervision because she was not an employee of the unit where Complainant was assigned.
The record includes a notation from the Chief of Financial Management Division, Space Vehicles Director to S advising the detailed employee that her first level supervisor will be Complainant and that Complainant "will make work assignments, approve leave and provide inputs to [the Chief] for her appraisal." Report of Investigation (ROI), 317. The detailed employee submitted a statement that "everything related to her employment still had to go back to AFRL for approval" ROI 187.
Claim 2 - Overlap in PPBE Duties
ORS handled a budget of 150 million dollars a year. Management made a determination that additional financial personnel were needed in 2010 to assist Complainant with managing the 150 million dollar budget.
It was undisputed that the Agency assigned the third employee with duties which were listed in Complainant's job description. Complainant alleged that she should have exclusive planning and liaison duties with Congress, because it was encompassed as a planning duty in her PPBE duties / job description.
The comparator employee performed the PPBE duties, as were assigned by the Agency. The Agency made the determination to assign the other employee some of these duties, in light of Complainant's undisputed heavy workload and the size of the budget.
Claims 3 to 6 - Hostile Work Environment
Management officials conducted an investigation after the officials received complaints about problems that were attributed to Complainant. It was undisputed that complaints were made to the Agency regarding certain performance issues. This information was shared with Complainant.
It was also undisputed that the Agency shared a proposed letter of reprimand with Complainant. Complainant was given the opportunity to respond to the proposed letter. Complainant argued that the Agency failed to consider the favorable comments made about her performance. It is undisputed that the letter of reprimand was never issued. There was no evidence that others were treated more favorably under similar circumstances and that the conversations were attributable to Complainant's national origin, gender or color.
Claim 5 - Appointment of Operations Chief
It is undisputed that the Agency assigned the duties of Operations Chief to another employer. The Agency's stated reason was that it assigned the employee because he had more available time than other employees, including Complainant.
Claim 6 - Evaluation
Complainant's 2010 performance standards required her to have a 90% accuracy rate on her financial product/work. "Complainant's 2010 performance on her financial product / work was a 50% accuracy rate." ROI, pp. 106, 154. The record showed that she had been counseled regarding her performance. Complainant stated in her deposition testimony that "this issue was moot as her evaluation was changed."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ Decision
The AJ found that the material facts were undisputed. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 13, 2012, motion for a decision without a hearing. The AJ dismissed the June 29, 2010, appointment issue for untimely EEO Counselor contact and for the substantive reasons applicable to her other claims. [age claim]The AJ found that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The AJ reasoned that Complainant failed to establish a prima facie case of discrimination "because there are not similarly situated employees outside Complainant's protected groups engaged in the same or similar acts and yet were treated more favorably." The AJ also found that "there is no other evidence in the record from which [he] can infer discrimination on any basis regarding the subject issues." Next, the AJ found that assuming Complainant established her prima facie claims, "there is inadequate evidence in the record showing that the Agency's reasons were false and served as a pretext for discrimination." The AJ found that the actions attributed to the two managers over a five month period were insufficient to create a severe or pervasive environment and were no linked to Complainant's protected groups.
When the Agency failed to issue a final order within forty days of its receipt of the AJ's decision, the AJ's January 24, 2014 decision became the Agency's final decision.
This appeal followed.
CONTENTIONS ON APPEAL
Complainant maintains that the AJ erred when the AJ granted summary judgment "despite the genuine dispute of material facts." Complainant did not identify the facts which she is claiming are material and in dispute. She also argues that the "AJ's decision is erroneous for lack of proper evidence in support of the finding of facts."2
The Agency responded that Complainant's appeal should be dismissed as untimely filed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, we review the final order and the AJ's factual conclusions and legal analysis 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) (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").
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. In this case, we find that the record was adequately developed for summary disposition and that Complainant was provided an adequate opportunity to engage in discovery and to respond to the Agency's motion.
Timeliness
We are not persuaded by the Agency's argument that Complainant's appeal should be dismissed as untimely filed. The Agency failed to issue a final decision from which Complainant could appeal. The notice provided to Complainant stated that "If the agency fails to issue a final order, you have the right to file your own appeal any time after the conclusion of the agency's (40) day period for issuing a final order." Consequently, we find that Complainant submitted a timely appeal.
Disparate Treatment
Section 717 of Title VII and Section 633(a) of the ADEA state that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination." To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
For purposes of our analysis, we will presume that Complainant established her prima facie claims. However, the prima facie inquiry may be bypassed, where 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 (1983).
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The articulated reasons were that the Agency did not permit Complainant to perform all supervisory duties over the detailed employee because the employee worked for another unit which had oversight. It directed another employee to assist with the planning based on its determination of the Agency's needs and provided feedback on her evaluation, based on her first-line supervisor's observations and comments which he received.
To ultimately prevail, Complainant must provide evidence that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Harassment
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that "a reasonable person" in complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of these elements, hostility and motive, will the question of Agency liability present itself. Freddie M. v. Department of Defense (Department of Defense Education Activity), EEOC Appeal No. 0120140976 (Jan. 8, 2016).
On appeal, Complainant argues that there is conflicting evidence regarding whether Complainant was given authority over the detailed employee for all aspects of employment and whether the Agency's assignment of duties was warranted.
In this case, Complainant did not provide any evidence that challenged the Agency's stated reasons. Looking at all of the evidence in the light most favorable to Complainant, there is no relevant evidence that would show that the subject actions were based on discriminatory animus.
Further, upon review of the record, we also find that Complainant did not establish her claim of harassment. There is simply no evidence that the alleged actions were in any way taken because of Complainant's national origin, sex, color or age.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact. To the extent that there were disputes, the disputes did not pertain to whether the Agency's actions were a pretext for unlawful discrimination. Therefore, we find that judgment as a matter of law for the Agency was appropriately entered in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's final action.
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 tends 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
August 16, 2016
__________________
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 Complainant did not challenge the dismissal of her claim that another employee had been appointed.
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