0120170707
03-20-2018
Theresa E.,1 Complainant, v. Marvin E. Kaplan, Chairman, National Labor Relations Board, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Theresa E.,1
Complainant,
v.
Marvin E. Kaplan,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 0120170707
Hearing No. 570-2014-00326X
Agency No. HDQ1306
DECISION
On November 17, 2016, 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 October 19, 2016 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.
ISSUE PRESENTED
Whether the EEOC Administrative Judge correctly determined that there were no genuine issues of material fact requiring a hearing in this case, and that Complainant failed to establish race or sex discrimination and/or unlawful retaliation for prior EEO activity when she did not receive a performance appraisal or commensurate award/bonus for work she performed from October 1, 2011 until her retirement in August 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was the former Director of Administration at the National Labor Relations Board (NLRB) in Washington, D.C. In that position, she was a member of the Senior Executive Service at the Agency. She retired from the Agency on or about August 3, 2012, prior to the end of that fiscal year.
During her tenure, Complainant received performance appraisals and monetary cash awards for her work in 2008, 2009, 2010, and 2011. She did not receive a performance appraisal for FY 2012, making her ineligible for a monetary cash award/bonus for that rating period.
Complainant filed a formal EEO complaint alleging the Agency discriminated against her on the bases of race (African-American), sex (female) and/or reprisal for prior EEO activity when she was not provided with a performance appraisal for the work that she performed from October 1, 2011 through August 3, 2012, and was not provided with a performance award/bonus for FY 2012.
The Agency accepted the complaint and conducted an investigation. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Complainant was represented by counsel before the AJ. The parties were permitted to conduct full discovery, including depositions.
On September 14, 2016, the AJ determined that there was no genuine dispute of material fact, including no genuine issue as to credibility, which would warrant a hearing in the above matter. As such, the AJ denied Complainant's motion for summary judgment, granted the Agency's motion for summary judgment, and issued a decision in the Agency's favor.
In reaching her decision in favor of the Agency, the AJ determined the following undisputed facts were established by the evidence developed during the investigation and pre-hearing discovery.
As Director of Administration, Complainant occupied a Senior Executive Service (SES) position in FY 2012 up to the time of her retirement on or about August 3, 2012. The Agency's performance cycle for SES employees for FY 2012 ran from October 1, 2011 through September 30, 2012.
Complainant had filed an earlier EEO complaint contesting her 2008 performance appraisal. Complainant had also filed another EEO complaint in June 2012 regarding concerns she had with management.2
Complainant's first-level supervisor, and rating official, was the Deputy General Counsel (Hispanic female). Her second-level supervisor was the acting General Counsel (Caucasian male). Both supervisors were aware of Complainant's prior EEO complaints.
The Deputy General Counsel was responsible for not issuing Complainant a performance appraisal for FY 2012. She said she did not issue one because Complainant retired prior to the end of the rating period. She also did not issue an FY 2012 performance appraisal to any other employee who retired prior to the end of rating period.
The only SES employee (Caucasian male) to receive a performance award for FY 2012 did not retire during the rating period.
Based on this evidence, the AJ concluded that Complainant failed to establish her claims of discrimination or unlawful retaliation.
On October 19, 2016, the Agency issued its final Agency action adopting the AJ's decision. The instant appeal followed.
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.
On appeal, Complainant argues that the AJ erred in issuing a decision by summary judgment. However, in order 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. While Complainant has, in a general sense, asserted that facts are in dispute, she has failed to point with adequate specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Complainant had the opportunity to conduct discovery. There is nothing in the record or evidence otherwise provided by Complainant to demonstrate the need for a hearing. Accordingly, the AJ properly proceeded to decide this matter based on the record.
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.
In order to prevail in a disparate treatment claim, 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 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we find that the Agency articulated a legitimate, non-discriminatory reasons for the alleged discriminatory actions, and Complainant has failed to prove, by a preponderance of the evidence, that the asserted reasons were pretext for unlawful discrimination, and that these actions were instead motivated by discriminatory/retaliatory animus.
Responsible management officials stated that Complainant was not provided with a performance appraisal for FY 2012 and commensurate award because she retired prior to the end of the rating period. It is undisputed that Complainant retired two months before the rating period ended. The record also shows that an appraisal was also not issued to another senior official (Caucasian female), who transferred to another agency prior to the end of the fiscal year.
In an effort to prove pretext, Complainant pointed to evidence that a performance appraisal had been issued the year before (FY 2011) to a former Associate General Counsel ("A-1") (Caucasian male) who had retired prior to the end of that fiscal year. The Deputy General Counsel explained that, at the time, she was not aware of the Agency's limitations on yearly appraisals after retirements so she had gone ahead and prepared the appraisal for the named individual. However, he did not receive a performance award.
For FY 2012, the record indicates that only one senior executive ("A-2") (Caucasian male) received a performance award for FY 2012. It is undisputed that he did not retire or otherwise leave the Agency prior to the end of the rating period. Management witnesses explained that they had been advised by the Office of Personnel Management (OPM), that to retain the Agency's certification of the SES Award Program, the Agency was required to issue a minimum of one performance award each fiscal year. The acting General Counsel stated this individual was chosen because he had voluntarily relocated to another region because of a downgrade of a Regional Office and its consolidation with another Region Office.
Complainant contends that the Agency has been inconsistent in providing performance appraisals and awards/bonuses over the years. She identified, by name, five white males that she believed received appraisals, bonuses or cash awards, either after the effective dates of their respective retirements or in a year when the Agency planned to not provide bonuses or cash awards. This list included A-1 and A-2.
The Agency investigated the three additional individuals identified by Complainant. The evidence revealed the following. A former Regional Director ("A-3") retired in March 2009, during Fiscal Year 2009. He did not receive an appraisal for his partial year of work in FY 2009, nor did he receive a cash award for that year. A-3 received an award in August 2009, but it was for the full 2008 Fiscal Year performance, ending September 30, 2008. Another former Regional Director ("A-4") retired in December 2011, during Fiscal Year 2012 and did not receive an appraisal or cash award for that partial year of work. The Agency states that the award he received in May 2012, was for his performance during the full 2011 Fiscal Year performance, ending September 30, 2011. Finally, a former Regional Director ("A-5") retired in December 2010, during Fiscal Year 2011 and did not receive an appraisal or cash award for that partial year of work. The Agency states that the award he received in June 2011, was for his performance during the full Fiscal Year 2010 performance, ending September 30, 2010.
Here, the evidence shows that Complainant was treated in the same manner as other executives who either retired from or departed the Agency before the end of FY 2012. To the extent that there was one deviation from this policy in FY 2011, the evidence indicates the different treatment was based on a lack of knowledge about the Agency's policy on the part of the rating official, and not any discriminatory animus. All other comparators identified by Complainant were treated as she was. Complainant failed to demonstrate that any of the Agency's legitimate, nondiscriminatory reasons for its actions were pretext for discrimination. There is an absence of any indication that a discriminatory or retaliatory animus based on Complainant's protected classes or her prior EEO activity played a role in the Agency's actions. The Commission determines that the weight of the evidence supports that AJ's conclusions that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to prove were pretext for discrimination or retaliation.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's Final Action adopting the AJ's decision.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
_3/20/18_________________
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.
2 The record indicates that Complainant opposed the consolidation of the June 2012 complaint with the instant complaint. As a result, they are being adjudicated separately.
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