0120162368
04-19-2018
Natalya B.,1 Complainant, v. Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natalya B.,1
Complainant,
v.
Davita Vance-Cooks,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120162368
Hearing No. 570-2012-01075X
Agency No. 1019
DECISION
On July 14, 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 June 1, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Content Acquisition Specialist at the Agency's Library Services & Content Management facility in Washington, DC.
On March 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (71) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when, on February 17, 2010, Complainant's Grade Level was changed from a PG-12 to a PG-11.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on May 10, 2016. Specifically, the AJ found that the record showed that, pursuant to an October 2004 settlement agreement, the Agency agreed to promote Complainant from a Grade 7 to a Grade 9/11 and ultimately to the position of a Grade 12 Content Acquisition Specialist. The AJ found that Complainant's first level supervisor (S1: 66 years old) articulated a legitimate, nondiscriminatory reason for altering Complainant's grade-level when she explained that she had done so by mistake. The AJ further found that Complainant failed to show that the Agency's articulated reason was a pretext. The AJ also addressed harassment, finding that the actions complained of was insufficiently severe to constitute harassment.
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. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, non-discriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Here, we find that S1 articulated a legitimate non-discriminatory reason for the Agency's action when she denied changing Complainant's grade, but averred that she "may have made a mistake" when filling out Complainant's evaluation form. S1 further averred that:
The actual label in the box on her performance plan for performance year for 2009 does indicate a PG-12 grade level. I should have gone back and seen what the grade level was on her previous performance plan, but I may not have. I knew she was performing at the grade level of PG-11. I had to appropriately indicate her correct grade level. There may have been a clerical error on my part, and I think no one thought of telling me what she should be indicated as on her performance plan. I may have known there was something different, but I did not represent it in the correct way on her performance plan. Upon advice from [the Director (D: 55 years)] I ensured [Complainant] was indicated correctly on the next performance plan. I was given a Position Description for her, and it is indicated as a PG-12 (A.A.). I varied her grade level designation from 2011 to 2012 because it is confusing to be supervising someone working at one grade and being paid at a different grade, a PG-12. It did not affect her day to day work. I do not hold her to a PG-12 performance standard. Her performance was rated against a PG-11 position description and performance plan.
Once the Agency has articulated a legitimate non-discriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason was a pretext, or otherwise show that discrimination occurred. Following a review of the record, we find that Complainant has not met this burden. On appeal, Complainant argues that management officials "worked behind Complainant's back to deprive her of the PG-12 position in which she was initially placed. [S1]'s alleged "clerical error" is simply the action that exposed the retaliatory scheming by these managers to deprive [Complainant] of her PG-12 status." The AJ correctly found that such arguments constitute an allegation of breach regarding the initial 2004 settlement agreement and are not relevant to the issue of whether or not Complainant was discriminated against. The AJ found:
Complainant contends that the Agency did not fulfill its obligations under the settlement agreement by promoting her to a PG-12 position. That is, the Agency was not only required to classify her as a PG-12 for pay purposes, but was also required to assign her the respective PG-12 job duties that accompany the higher-level position. Complainant submits that she is "entitled to a PG-12 position" and "[t[hat entitlement includes all of the privileges and benefits that go along with a PG-12. It was not simply about paying [her] as a PG-12." . . . Complainant continues, "[t]he Agency did not want to give [her] a PG-12 team lead position despite the fact that she was entitled to a PG-12 position under the settlement agreement.... [she] was actually considered a PG-11" [citation omitted] Complainant submits that the Agency's action of changing her pay level to a PG-12 without informing her that she would not be performing the respective duties was deceitful. . . . "the Agency could have promoted [Complainant] to a 'senior' or 'team lead' position which were PG-12 positions ... But, instead, the Agency portrayed the position and [Complainant's] duties as being those of a PG-12 for three years."
I find that Complainant has failed to refute the Agency's proffered reasons as pretext for discrimination and retaliation. The arguments set forth by Complainant do not address the articulation' by [S1] that she committed a clerical error in listing what she believed was the grade level of Complainant's duties rather than the Grade Level of Complainant's pay on the performance evaluation form. Instead, and in contradiction of Complainant's attempt to classify the action as a downgrade, Complainant repeatedly argues that the Agency failed to promote her
to a PG-12 position in violation of the settlement agreement; the settlement agreement not only required the Agency to pay her at the PG-12 level but also to assign her the respective duties of the PG-12 position. I note that if Complainant believes that the Agency did not fulfill its obligation to completely promote her to a PG-12 position, the appropriate venue is to file an enforcement action as she has done in the past. Complainant, however, has not shown that the listing of her as a PG-I 1 on certain paperwork was due to discriminatory or retaliatory animus.
We agree. The issue in the instant complaint is whether or not S1 discriminated against Complainant based on age and reprisal when she entered PG-11 instead of 12 on Complainant's personnel evaluation. The issue of whether or not Complainant should have been working as a PG-12, with all the benefits and duties of that grade, is a separate issue that goes to whether or not the Agency breached the settlement agreement.
Complainant next argues that the record shows direct evidence of discrimination, namely "the Agency's stated reason for downgrading [Complainant's] position to a PG-11 is that she only had the PG-12 designation due to her prior EEO activity (i.e. the settlement agreement) . . . . The Agency does not dispute that the actions it took were due to the settlement agreement in her prior EEO actions." Such an argument, however, misstates the record. In fact, the record shows that the Agency does dispute that its actions were due to the settlement agreement and argues instead that Complainant was not downgraded but that S1 entered the incorrect grade by mistake. Such an articulated reason does not constitute direct evidence of discrimination.
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 order that fully implemented the AJ's decision by summary judgment.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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, ling 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
April 19, 2018
__________________
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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