0120111961
04-23-2012
Phillip Luster, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
Phillip Luster,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Appeal No. 0120111961
Hearing No. 570-2010-00699X
Agency No. H09-02
DECISION
On February 22, 2011, Complainant filed an appeal from the Agency's January 24, 2011 final order concerning an 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
In January 2008, Complainant was hired as a Supervisory Auditor GS-0511-13/YC-0511-02 with the Agency's Field Detachment Region. He was first assigned to the Shenandoah Branch Office (SBO), but in March 2008 was transferred to the Bull Run Branch Office (BRBO). Because Complainant and his team were joining the BRBO mid-year, they were assigned to assist other established teams instead of having their own audit assignments. In July 2008, the BRBO Branch Manager met with Complainant regarding concerns with Complainant's work on an assignment. Approximately one week later, Complainant was notified that he needed to increase his attention to details. In August 2008, due to workload reorganization, Complainant and some of his team were returned to the SBO. On October 23, 2008, in a meeting with his second level supervisor and others, Complainant was informed that his performance was unsatisfactory and needed improvement. When he was issued his Probationary Performance Evaluation and Mid-Year Supervisory Probationary Progress Review, in September 2008, Complainant was rated as unsatisfactory in two of the ten factors. In early January 2009, Complainant's annual appraisal (for February 17, 2008 through August 16, 2008) reflected an overall score of 2.0. According to the appraisal, Complainant's work continued to be of marginal quality and his struggles in training the new auditors on his team were ongoing. Consequently, on January 15, 2009, Complainant received a Notice of Unsuccessful Probationary Period. Complainant was informed that he had the option of requesting a voluntary downgrade to Senior Auditor, as well as a reassignment to an office where he had not been supervisor. The next day, Complainant requested the downgrade, but rejected the offer of a reassignment to another office. The downgrade was effective January 18, 2009.
Believing that the Agency's actions were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on August 3, 2009, Complainant filed a formal complaint based on race and age. The Agency framed the claims as follows:
1) On January 5, 2009, Complainant received a rating of "Fair" (2.5) for his Interim Review/Closeout Annual Performance Appraisal for Supervisory Auditor, and was rated 2 in two of the five critical job elements.
2) On January 15, 2009, Complainant received a Notice of Unsuccessful Probationary Period as a Supervisory Auditor and was informed of having until January 16, 2009 to request a voluntary downgrade (YC-02 to YA-02).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's motion for a decision without a hearing. On January 7, 2011, the AJ issued a decision without a hearing finding no discrimination.
Assuming that Complainant presented a prima facie case, the AJ found that the Agency proffered legitimate, non-discriminatory reasons for its actions. The BRBO Branch Manager based Complainant's performance evaluation upon his own observations, as well as several other sources. He found Complainant's audit packages to be of poor quality and requiring significant rework. Further, the BRBO Branch Manager believed that Complainant failed to properly train new auditors nor provide them with appropriate audit guidance.
In an effort to show pretext, Complainant argued that management assigned him a group of inexperienced auditors in an effort to set him up to fail. The BRBO Branch Manager noted, however, that other supervisors also had inexperienced auditors to train, who had performed satisfactorily. Complainant also contended that his supervisors failed to give him feedback and did not send him to training. He believed that he had performed well in his position as Supervisory Auditor.
The AJ found Complainant's assertions to be merely conclusory and unsupported by evidence. There was no evidence that the deficiencies described in the evaluations were inaccurate. While Complainant disagreed with management's evaluation of his work, the AJ noted that such disagreement, standing alone, was insufficient to create a genuine issue of material fact. The AJ concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On January 24, 2011, the Agency issued a final order adopting the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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").
Summary Judgment
We must first 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.
Based on a review of the instant record, the Commission finds that the Agency properly granted the Agency's motion for summary judgment. There are no genuine issues of material fact which would require a hearing.
Merits of Case - Disparate Treatment
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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
The McDonnell Douglas analytical paradigm need not be adhered to in all cases. In appropriate circumstances, when the agency has articulated legitimate, nondiscriminatory reasons for its conduct, the trier of fact may dispense with the prima facie inquiry and proceed to the ultimate stage of the analysis, i.e., whether the complainant has proven by the preponderance of the evidence that the agency's explanations were pretext for discrimination. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Here, we will assume without so finding that complainant established his prima facie case of discrimination based on race and age.
Management believed that Complainant's performance reflected the performance rating he was issued. In turn, Complainant's failure to improve after learning of his deficiencies resulted in the Notice of Unsuccessful Performance and offer to take a lower level position. The BRBO Branch Manager attested that three of Complainant's team members expressed concern over how they were being trained by him. The team members expressed confusion over his guidance, finding that it often contradicted the Agency's Contract Audit Manual and their prior training. According to the BRBO Branch Manager, these individuals felt that under Complainant's leadership they were falling behind their peers on other teams. The BRBO Branch Manager also explained Complainant's lower rating for the "timeliness" factor, stating that on three specific assignments other supervisor had to complete or redo the work in order to complete the assignments on time. With respect to the "supervisory" factor, the BRBO Branch Manager based the rating on discussions with the auditors on Complainant's team as well as from the other supervisors who Complainant's team was supporting. The concerns with particular assignments were brought to Complainant's attention during meetings held in July 2008. Complainant was told that he needed to improve, stated the BRBO Branch Manager. When he failed to demonstrate adequate improvement, he was issued the Notice of Unsuccessful Performance. The manager attested that Complainant was treated in the same manner as any other probationary supervisory auditor.
Similarly, the SBO Branch Manager would have rated Complainant as unsatisfactory in supervisory skills, based up on the work done upon his return to that office. For example, the SBO Branch Manager noted Complainant's failure to properly guide his auditors regarding the audit of a $6.5 million cost plus fix fee proposal. Complainant set up three individual assignments rather than one full review. Complainant's decisions were found to be unsupported and contrary to the Contract Audit Manuel. Upon his review, the manager found that many corrections were necessary, which should have been found during Complainant's supervisory review.
Complainant must now establish, by a preponderance of the evidence, that the Agency's legitimate, non-discriminatory reasons were pretext for discrimination. While Complainant broadly challenges management's actions, he fails to present specific evidence contradicting the Agency's proffered reasons. Moreover, he has not offered any evidence that would establish discriminatory animus more likely than not played a role in any of the agency's decisions. When asked why he believed that the Agency's actions were motivated by his race or age, Complainant merely noted that he was the only black trainee and he was not sure if the other Supervisory Auditors were over the age of forty. As a result, we find that Complainant has not established that the agency's legitimate, non-discriminatory reasons were pretext for discriminatory retaliation.
CONCLUSION
Accordingly, the Agency's decision finding no discrimination was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 23, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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