[Redacted], Stella K., 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020000863 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stella K.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice, Agency. Appeal No. 2020000863 Hearing No. 570-2017-00463X Agency No. OJP-2016-00433 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission),2 pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 7, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her age, race, or sex when it did not give her a cash performance award; assigned her the work of other staff members; and rated her performance as “Met Expectations.” 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 While we note that Complainant’s October 21, 2019 appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on November 7, 2019. 2020000863 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Operations Specialist at the Agency’s National Institute of Justice (NIJ) in Washington, D.C. Complainant stated that cash awards based on performance are given to employees who do an outstanding job. Complainant stated that she went “above and beyond the call of duty,” but never received a cash award. Report of Investigation (ROI) at 76, 81. Complainant stated that since August 2015, she has performed Freedom of Information Act (FOIA) duties that belong to other employees. Complainant stated that her first-line supervisor (S1) (age 54, Caucasian, male) stated that Complainant was doing an excellent job with the FOIA duties and that he wanted her to continue with those duties. ROI at 79. On February 5, 2016, Complainant received a performance evaluation of “Meets Expectations.” S1 provided a summary narrative to support Complainant’s rating; for example, regarding her quality of work, S1 noted that while it was “acceptable, neat, and complete,” Complainant relied on others for help on more complicated FOIA requests and she needed oversight for new tasks. ROI at 129-30. On June 23, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (56) when: 1. during her time of employment with the Agency, up to and including the 2015 evaluative period, Complainant never received a performance-based cash award; 2. since August 2015, and continuing to the present, Complainant has been assigned the work of other NIJ staff members, including the processing of FOIA requests; and 3. on February 5, 2016, Complainant received a performance evaluation of “Met Expectations,” which failed to take into account her true level of performance and the extra duties she had been assigned. The Agency accepted the above claims for investigation but dismissed Complainant’s claim alleging discrimination when on February 5, 2016, Complainant refused to sign her Employee Communication and Performance Plan, which she considered an unfair assessment of her performance, and S1 threatened to deny all future requests for medical telework. The Agency found a failure to state a claim because Complainant had not been denied any request for medical telework within the time period, and she could not demonstrate that she suffered direct, personal deprivation at the hands of the Agency with respect to this claim.3 ROI at 66-67. 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s procedural dismissal of this claim; as such, we will not address it in the instant decision. 2020000863 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 10, 2018, the AJ issued a Notice of Proposed Summary Judgment and both parties responded. The AJ issued a decision without a hearing on September 30, 2019. The AJ reviewed the parties’ responses and the record to determine that further development of the record was unlikely to lead to a finding of discrimination. The AJ found that the record yielded no evidence demonstrating a disputed issue of material fact requiring a hearing. The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged discriminatory actions, and that Complainant had not offered evidence to show that the Agency’s articulated reasons were pretextual, or that any of the actions were connected to her protected bases. The AJ determined that Complainant’s mere conjecture and bare allegations were insufficient to demonstrate a genuine issue of material fact as to the Agency’s motivation for its personnel actions. The AJ entered summary judgment in the Agency’s favor. 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. Complainant filed the instant appeal but did not provide arguments in support of her appeal. The Agency opposed Complainant’s appeal and asserted that the AJ’s decision without a hearing was proper. The Agency requests that the Commission affirm its final order. 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 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both 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 the 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 Chap. 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”). 2020000863 4 Decision without a hearing We determine whether the AJ appropriately issued the decision without a hearing. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is 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. Here, Complainant did not provide any arguments on appeal and a review of the record does not reveal any genuine disputes of material facts. As such, we find that the AJ properly issued a decision without a hearing. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, race, and sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. 2020000863 5 For claim 1, S1 stated that NIJ follows the Office of Justice Programs for performance awards, which provides that employees are eligible for cash awards if they are rated “Exceeds Expectations.” S1 stated that Complainant’s rating was “Meets Expectations,” and therefore, Complainant was not eligible for a cash award. ROI at 96. Regarding claim 2, S1 stated that management has a responsibility to assign work as needed, and that the FOIA duties were assigned to Complainant to balance the workload of the unit. S1 noted that Complainant was the only employee responsible for the FOIA duties, and that he informed her that the duties were no longer assigned to the prior employee. ROI at 98. For claim 3, S1 stated that he relied on the Office of Justice Programs Human Resources policy OJP-P-430-1. S1 stated that he rated Complainant’s performance based on his observations; a review of Complainant’s work products; and input from a variety of other sources, such as customer feedback, other supervisors, and those with a knowledge of Complainant’s performance. ROI at 99. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking in credibility, which were then successfully rebutted by the Complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not provide any evidence to show that S1’s proffered reasons were not worthy of belief, and she only made bare assertions that S1 discriminated against her, which are insufficient to prove pretext or that his actions were discriminatory. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Here, there is no evidence in the record of any unlawful motivation for S1’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, race, or sex when it did not give her a cash performance award; assigned her the work of other staff members; and rated her performance as “Met Expectations.” 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 adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her age, race, or sex when it did not give her a cash performance award; assigned her the work of other staff members; and rated her performance as “Met Expectations.” 2020000863 6 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. 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). 2020000863 7 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. 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 February 9, 2021 Date