[Redacted], Barbra S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2020004523 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbra S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004523 Hearing No. 420-2018-00019X Agency No. ARCEHUNTV16DEC04737 DECISION On August 7, 2020, 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 July 10, 2020, 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. BACKGROUND During the period at issue, Complainant worked as a Contract Specialist, Grade GS-13, at the Agency’s Engineering and Support Center, Medical Information and Technology Section in Huntsville, Alabama. Complainant’s direct supervisor and first-level performance evaluator was the Section Chief (“S1”) who was Caucasian/White. Complainant’s second-level manager and senior rater was the Branch Chief for Information Technology Services (“S2”) was African- American/Black. 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 2020004523 On March 16, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and in reprisal for prior protected EEO activity when, on November 7, 2016, she received a “3” performance rating in her Fiscal Year 2016 (FY16) performance appraisal. Complainant further believed that the accomplishments she submitted were intentionally changed and altered, which ultimately led to a lower performance rating. After an 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 4, 2020 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on May 19, 2020. The Agency subsequently issued a final order adopting the AJ’s finding no discrimination. On August 7, 2020, Complainant filed the instant appeal. On September 5, 2020, Complainant’s representative filed a brief in support of the appeal. Therein, Complainant contends that her performance merited the top-rating of “1” as opposed to “3.” Complainant states that she had received a 1 rating in all of her prior years with the Agency. As a result, Complainant was shocked by her supervision’s decision to down-grade her performance to 3. Complainant argued that management failed to indicate that she was performing below expectations until she received the “3” rating for fiscal year 2016. Complainant asserted that co-workers who are of different races (Asian and Caucasian) received higher ratings. Complainant accused her direct supervisor of withholding mentorship and one-on-one on-the-job training provided to co-workers who received more favorable evaluations as a result. According to Complainant, her supervisor was disproportionately critical when Complainant made the same mistakes as her co-workers. Complainant further argues that her performance rating was wrongfully low because it did not take into account that Complainant was new to her current assignment. On February 11, 2021, the Agency submitted its brief in opposition to Complainant’s appeal. On March 2, 2021, Complainant and her representative objected to the Agency’s response as untimely. ANALYSIS AND FINDINGS As an initial matter, we concur with Complainant’s representative that the Agency’s brief opposing the appeal was untimely. EEOC Regulation 29 C.F.R. § 1614.403(f) required the Agency to submit its opposing response within thirty days after September 5, 2020, when Complainant submitted her statement in support of the appeal. The Agency responded to Complainant’s appellate brief approximately four months after Complainant submitted her brief. Therefore, we declined to consider the Agency’s untimely appellate response in reaching the decision that follows. 3 2020004523 The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it was adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Although Complainant pointed out where the performance evaluation process was unfavorable, Complainant failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. The Commission reviews disparate treatment claims by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie 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 Agency’s employment actions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 (1993). Assuming arguendo that Complainant established a prima facie case on the raised bases, the Agency has evidenced and articulated justifications for rating Complainant’s performance as a 3 as opposed to higher. Despite Complainant’s contention to the contrary, S1 actually did provide Complainant detailed feedback near the middle of the performance year in February 2016. After Complainant submitted a self-evaluation documenting her individual contributions to the Medical Information and Technology Section, S1 provided advice and gave Complainant an opportunity to revise her accomplishments and goals accordingly. 4 2020004523 In a contemporaneous memorandum, S1 documented that she had higher expectations for Complainant as a senior contract specialist within the Medical Information and Technology Section because Complainant was a GS-13 whereas all of the other contract specialists were grade GS-11. Unlike Complainant’s GS-11 coworkers, S1 expected Complainant to handle more complex contracts and make fewer mistakes while mentoring junior contract specialists. Later, when S2 declined to grant Complainant’s rebuttal seeking a higher score on the performance evaluation because Complainant needed to improve her communication with S1. S2 supported S1’s rating after even after considering Complainant’s rebuttal wherein Complainant described her FY 16 accomplishments in greater detail. Complainant has not demonstrated that S1 or S2’s explanations concerning the contested performance rating are deceptions or somehow unworthy of credence. Complainant may have been disappointed that S1 and S2 did not evaluate her performance more favorably, but Complainant failed to persuade us that discriminatory animus factored into the Complainant’s performance evaluation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s issuance of a decision without a hearing and the Agency’s final order adopting the AJ’s decision finding that unlawful discrimination was not proven to a preponderance of evidence. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 5 2020004523 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 6 2020004523 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 December 9, 2021 Date