0120172817
08-31-2018
Sanjuanita A.,1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sanjuanita A.,1
Complainant,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120172817
Hearing No. 570-2014-01041X
Agency No. HUD000412013
DECISION
On August 19, 2017, 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 18, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-14, at the Agency's Fair Housing and Equal Opportunity facility in Washington, DC.
On April 23, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (Black) when:
1. On or about January 11, 2013, Complainant was denied a request to continue to perform her assigned duties from an Agency facility in Boston, Massachusetts, and was forced to return to work at Headquarters, in Washington, DC; and
2. On January 17, 2013, Complainant received an evaluation of Fully Successful from her second-line supervisor, after her first-line supervisor rated her Highly Successful.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 21, 2016, motion for a decision without a hearing and issued a decision without a hearing on June 28, 2017. Specifically, the AJ found that Complainant failed to establish a prima facie case with regard to claims 1 & 2 because Complainant failed to identify similarly situated coworkers outside of her protected bases who were treated differently. The AJ further found that, assuming Complainant established her prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that such reasons were pretextual. 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.
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, nondiscriminatory 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, nondiscriminatory 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). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination with regard to claims 1 & 2.
We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, we note that the record shows Complainant's duty station was at Headquarters in Washington, DC, but that she had been granted permission to work in Boston, Massachusetts to care for her ailing mother. The General Deputy Assistant Secretary, who became Complainant's current supervisor (S1: African American, brown skin, male) after the retirement of Complainant's then-supervisor (S2: African American, black, male), averred that he ended the arrangement because it "had continued for at least seven months; it was a temporary arrangement and became untenable. We could not permit it to continue indefinitely." With regard to claim 2, S1 averred that S2:
rated the Complainant, and . . . I was the reviewing official. I commented on [S2]'s ratings because I did have direct knowledge of the work of [S2]'s employees. I found myself personally involved with the work of [S2]'s division even before he retired. Specifically, I worked with [Complainant] on planning a Policy Conference which was never held due to budget constraints. The planning of this conference was largely within [Complainant's] area of responsibility. My impression is that the Complainant often took longer to get back to me on things in general but specifically relating to the conference. I felt that I was directing every step in the process and substituting my judgment where she should have been more involved. I recall learning that we hadn't done a proper Independent Government Cost Estimate, but had instead estimated costs of the conference based on past conference costs. I recall having to explain several times why this was a deficient approach. Overall, the Complainant did not apply the initiative and independent judgment that's expected at her grade. It was also difficult at times to catch up with her. In general, she was not as productive or independent as her elements and grade called on her to be.
The Agency having articulated legitimate non-discriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden.
With regard to claim 1, Complainant points to numerous comparators outside of her protected bases who she maintains were treated differently by being allowed to work away from their duty stations: a Senior Advisor, GS-15 (CW1: Caucasian, male, white); a Senior Policy Advisor, GS-15 (CW2: white, male, white); a colleague in an unspecified position (CW3: white, male, white); a Management Information Specialist, GS-14 (CW4: white, male, white); a Program Analyst/Center Director, GS-15 (CW5: white, male, white); an EEO Specialist and Presidential Management Fellow, GS-13 (CW6: white, male, white); another Presidential Management Fellow (CW7: Hispanic, female, olive); yet another Presidential Management Fellow (CW8: white, female, white); and yet another Presidential Management Fellow (CW9: race unspecified, female, light skin). Following a review of the record, however, we find that Complainant has not shown that such comparators were similarly situated.
The record shows that S2 did not supervise CW1 and did not authorize his work arrangement. The Administrative Officer (S3: African American, male, dark brown skin) testified that CW2 "was allowed to temporary alter his work location to care for an elderly parent. This informal arrangement had an official start and end date (approximately 2 months), and [CW2] was required to return to HQ and his position." Report of Investigation (ROI), Affidavit D, p. 4. S3 next testified that CW3 "was out on two separate occasions to care for his father and then his life partner. In both situations CW3 used leave and was never granted a temporary accommodation." Id., p. 5. With regard to CW4, S2 testified that he moved to San Francisco but denied having any involvement in the move. See ROI, Affidavit B, p. 7. S2 further averred that CW4 "does IT work which is very portable." See id. S2 next testified that CW5 "worked in Chicago from about 2007-2012. He may have moved there on a hardship transfer - I don't clearly remember but I believe he accepted a demotion to a lower grade in order to go to Chicago for family reasons. In that case, unlike the Complainant, he moved to Chicago to join the office in that location, and even sacrificed pay." Id. We find that none of these situations is comparable to Complainant's.
The remaining comparators are Presidential Management Fellows and as such as not similarly situated with Complainant, who is not. It is well established that in order for comparative evidence relating to other employees to be considered relevant, those employees must be "'similarly situated' so that all relevant aspects of the employees' work situation are identical or nearly identical." See Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003); Stewart v. Dep't of Defense, EEOC Appeal No. 01A02890 (Jun. 27, 2001). The comparator must be similar to the complainant in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) citations omitted.
Complainant, on appeal, argues that the AJ erred in failing to consider Appellate Court cases that apply a more flexible standard to the notion of "similarly situated." We note, however, that the Commission has held that the Commission is not bound by federal court precedent for purposes of adjudicating federal sector complaints See Haywood C. v. U.S. Postal Service. EEOC Appeal No. 0120132452 (Nov. 18, 2014): See also, e.g. Huddleson v. U.S. Postal Service, EEOC Appeal No. 0720090005 n. 6 (Apr. 4, 2011); Turtle v. U.S. Postal Service. EEOC Appeal No. 0720080025 n. 2 (Mar. 5,2009). In any event, given record testimony that Presidential Management Fellows are allowed to select their place of employment while non-Presidential Fellows are generally not so, even under the standards set forth in Coleman v Donohue, 251 F 3rd 588 (2012), we find that Complainant is not similarly situated with employees CW 5, 7, 8, and 9. Nor do we find Complainant to be similarly situated with CW 1 and 4, neither of whom had their absence from the office sanctioned by S2. Finally, we find that CWs 2, 3, and 5 are not valid comparators since Complainant was allowed to work away from her duty station for three months longer than CW2 was, CW3, unlike Complainant, used leave rather than seeking temporary work relocation, and CW5 took a permanent transfer to a new position.
With regard to Complainant's lowered evaluation, Complainant has indicated she disagrees with the rating she received but has not presented any argument on appeal regarding this issue and has not met her burden of establishing, by a preponderance of the evidence, that S1's articulated reason for lowering her rating is a pretext to mask discrimination or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the presence of a material issue of fact. Nor has Complainant established, by a preponderance of the evidence, that discrimination or reprisal occurred. We therefore AFFIRM the final order.
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 (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
August 31, 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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