[Redacted], Karlene P., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003540 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karlene P.,1 Complainant, v. Samantha Power, Administrator, Agency for International Development, Agency. Appeal No. 2020003540 Hearing No. 570-2016-00800X Agency No. OCRD-029-15-F DECISION On May 26, 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 March 31, 2020 decision 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 Senior Advisor at the Agency’s Central Command (CENTCOM) in Tampa, Florida. On July 29, 2015, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against her for her prior protected EEO activity when her request for a Limited Career Extension (LCE) was denied.2 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 originally also alleged discrimination on the bases of national origin and sex. However, she later gave notice that she was only pursuing her retaliation claim. 2020003540 2 After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On January 31, 2018, the Agency filed a Motion for a Decision without a Hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a decision by summary judgment in favor of the Agency on March 31, 2020. When the Agency did not issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding of no unlawful retaliation was established became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal, Complainant, through counsel, argues primarily that the matter at issue is that the Agency’s Chief Human Capital Officer participated in the settlement of Complainant’s prior EEO case and then used her office to force Complainant into retirement rather than granting the career extension. ANALYSIS AND FINDINGS 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. 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. 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. 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 his favor. 2020003540 3 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, a complainant must first 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The evidence reflects that pursuant to the Foreign Service Act (22 U.S.C. § 4007), employees in Complainant’s status must be promoted within a certain time period or they will be removed from their position. This timeframe is identified as Time-in-Class (TIC), and the date to separate is called the TIC date. Complainant was an Agency Senior Advisor with a TIC date of October 2015. A Limited Career Extension (LCE) can be granted beyond the TIC date upon the determination of the Consolidated Board (C/Board), or if the Agency’s Chief Human Capital Officer (CHCO) grants a one-year extension. The C/Board meets to determine if employees, with a TIC date the following calendar year, will receive an LCE. The C/Board’s determination is based on the employee’s performance evaluations during his or her tenure with the Agency. Here, the C/Board met and made its determination in June 2014 for individuals like Complainant with TIC dates in the 2015 calendar year. The C/Board did not recommend Complainant for an LCE. The C/Board’s assessment was based upon Complainant’s prior evaluations, language proficiency records, and training record. Three of the other employees who were recommended by C/Board for an LCE had prior protected EEO activity. The only other option for an extension of employment was a CHCO-granted extension. Complainant stated that CHCO informed Complainant in February 2015 that a CHCO extension would not be granted, as an extension “may be granted only in special circumstances” pursuant to 22 U.S.C. § 4007(d)(2). Complainant now argues that she was subjected to unlawful retaliation by the CHCO. The CHCO’s involvement in the settlement of Complainant’s prior EEO complaint is undisputed. However, the CHCO testified, and the record supports, that management never submitted a formal request for a “special circumstances” extension of Complainant’s employment and, in fact, had already assigned another employee to Complainant’s position. As such, CHCO testified that, absent the formal request and someone already assigned for the position, she decided not to grant Complainant the extension. 2020003540 4 We determine that contrary to Complainant’s appellate argument, the claim was properly identified. The AJ, moreover, properly determined that the CHCO articulated a legitimate, nondiscriminatory reason for her decision, and Complainant has not provided evidence to demonstrate that the Agency’s rationale is pretext for discrimination. The AJ analyzed these facts and determined that there was no genuine dispute of these facts. Complainant has failed to prove, by a preponderance of the evidence, that the CHCO retaliated against Complainant for her prior EEO activity. Significantly, we note that the C/Board, with no established connection to Complainant’s prior EEO activity, also denied Complainant an extension in its separate deliberations. Mere assertions of retaliatory animus on the part of the CHCO, without evidence, are not sufficient to demonstrate a genuine dispute of facts. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s decision by summary judgment concluding no unlawful retaliation was established. 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). 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. 2020003540 5 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. 2020003540 6 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 November 4, 2021 Date