Nancy D.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionApr 11, 20180520180099 (E.E.O.C. Apr. 11, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancy D.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Request No. 0520180099 Appeal No. 0120152243 Hearing No. 520-2014-00235X Agency No. ARBUF13MAR00667 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Nancy D. v. Dep’t of the Army, EEOC Appeal No. 0120152243 (Sept. 20, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). On May 6, 2015, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of sex (female) and in reprisal for prior protected EEO activity when: 1. She learned that all women on the Environmental Analysis, Planning Management, and Planning Services Teams received a Level Two performance rating while all men, except one, received a Level One performance rating; 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. 0520180099 2 2. On February 7, 2013, she received a time-off award while male employees received cash awards or a combination of cash and time-off awards; 3. On February 7, 2013, she was not afforded the opportunity to identify her preference for the type of performance award (i.e. cash or time off) while some male employees were provided with the option; and 4. On February 7, 2013, her performance rating was lowered by S2 from a Level One rating to a Level Two rating. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter granted the Agency’s motion for summary judgment, and issued a decision in favor of the Agency. Therein, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were pretext for unlawful discrimination or reprisal. As a result, the AJ held that Complainant had not been subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. Complainant appealed and, in Nancy D. v. Dep’t of the Army, EEOC Appeal No. 0120152243 (Sept. 20, 2017), the Commission vacated the final order and remanded the complaint for a hearing. In so doing, the Commission determined that material facts remained in dispute and Complainant raised questions of credibility regarding management officials’ statements. For example, the Commission found that Complainant raised sufficient evidence raising an inference of discrimination regarding her second-level supervisor’s explanation of how he issued awards to his male employees versus his female employees. Additionally, the Commission noted that one of Complainant’s colleagues stated that she believed that sex was a factor in how Complainant was rated and three other female employees challenged their ratings as well. Further, the Commission determined there were questions of fact remaining as to whether Complainant’s conduct was reasonably applied to her ratings and credibility questions regarding Complainant’s second-level supervisor’s statements about Complainant’s conduct. Accordingly, the Commission concluded that the AJ erred as a matter of law in granting summary judgment in favor of the Agency as the record needed further development and credibility issues needed to be resolved during a hearing. In its request for reconsideration, the Agency contends that the Commission erred in vacating its final order affirming the AJ’s summary judgment decision. The Agency argues that the AJ correctly found no evidence contradicting its articulated legitimate, nondiscriminatory reasons for its actions. The Agency contends that the Commission will erode the utility of summary judgment as a means to dismiss meritless claims such as Complainant’s by utilizing a hearing as a further opportunity for investigation absent any finding of evidence creating a genuine issue of material fact as to pretext. Further, the Agency argues that the Commission erred in its interpretation of material facts. Accordingly, the Agency requests that the Commission grant its request for reconsideration. 0520180099 3 Complainant submitted a brief in opposition to the Agency’s request in which she urged the Commission to affirm its previous decision and remand her complaint to an EEOC AJ for a hearing. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Commission found in its previous decision that material facts remained in dispute and credibility issues needed to be resolved. Accordingly, the Commission found that the record was underdeveloped and that a hearing was needed to cure these deficiencies. The Agency argues that the Commission erred in vacating its final order without deciding whether Complainant sufficiently met her burden of establishing pretext. The Commission notes that pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsid. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, as discussed in the prior decision and contrary to the Agency’s arguments, Complainant presented sufficient evidence to raise triable issues regarding the Agency’s articulated reasons for its actions. The Agency has not presented any evidence to support reconsideration of the Commission’s finding that genuine issues of material fact and credibility determinations existed warranting a hearing. As such, the Agency has not presented any persuasive evidence to support granting its request for reconsideration. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120152243 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC New York District Office Hearings Unit within fifteen (15) calendar days of the date this decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.†The report shall include supporting documentation verifying that the corrective action has been implemented. 0520180099 4 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.†29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 0520180099 5 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 11, 2018 Date Copy with citationCopy as parenthetical citation