Theresa Schiavo, Complainant,v.Paul Prouty, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionMay 8, 2009
0120090642 (E.E.O.C. May. 8, 2009)

0120090642

05-08-2009

Theresa Schiavo, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.


Theresa Schiavo,

Complainant,

v.

Paul Prouty,

Acting Administrator,

General Services Administration,

Agency.

Appeal No. 0120090642

Hearing No. 530-2008-00125X

Agency No. GSA-07-R3-OAD-TS-09

DECISION

On December 2, 2008 complainant filed an appeal from the agency's final

order, dated November 6, 2008, 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

BACKGROUND

During the relevant time, complainant worked as a Congressional Service

Representative (CSR), GS-12, in the Program Services Division of the

agency's Mid-Atlantic Region headquarters located in Philadelphia,

Pennsylvania. There are nineteen CSR positions located throughout

the country. Most of these positions were upgraded, to GS-13, prior to

complainant's selection. Only complainant and one other individual have

not been upgraded.

In March 2007, complainant requested an upgrade to GS-13. Complainant's

supervisor, the Director of Finance and Acquisition Policy, denied the

request. The supervisor found that the GS-13 position requires that

30% of the work concerns the national database, and that complainant

was not performing sufficient levels of those duties. As a result,

complainant requested a desk audit. In April 2007, the Human Resources

specialist who conducted the audit concluded that complainant's position

was properly graded at GS-12.

Believing that the denial of her upgrade from GS-12 to GS-13 was

discriminatory, complainant contacted the EEO office. Informal efforts

to resolve complainant's concerns were unsuccessful. Subsequently,

complainant filed a formal complaint based on sex (female)1 and national

origin (Italian).

At the conclusion of the investigation, complainant was provided 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. On August 12, 2008, the agency's filed a motion

on August 12, 2008, for a decision without a hearing. According to the

AJ assigned to the case, the complainant did not object. The agency's

motion was granted, and on October 20, 2008 the AJ issued a decision

without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case,

because she failed to show that she was treated differently than similarly

situated males or non-Italian employees. The AJ found that complainant

did not cite an appropriate comparator with duties similar to her own,

that was promoted. One of the individuals cited handles problems with the

national data base, which complainant does not. Further, the individual

cited by complainant is of the same protected classes.

Moreover, the AJ observed that the agency presented a legitimate,

non-discriminatory reason for its decision not to promote complainant to

the GS-13 level: to qualify for the GS-13 level, complainant needed to

perform at least 30% national duties, and complainant herself estimated

that she performed such duties only between 2% and 8% of the time.

Finally, complainant did not offer evidence of pretext. Consequently the

AJ found no discrimination based on sex or national origin.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

ANALYSIS AND FINDINGS

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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(Providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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 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 Chapter 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").

We must first 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.

On appeal, complainant argues that she did submit a response to the

agency's motion for a decision without a hearing. Specifically, she

contends that her reply was hand-delivered to the Chief AJ's office.

In support of her contention, she submits a copy of an e-mail to an

agency employee which included within it the "memo to Judge Flynn".

In the August 20, 2008 e-mail complainant states that she sent the

document to the AJ "by Registered Mail today."

The statement to the AJ lists several points. For example, complainant

asserts that when complainant approached her supervisor about the upgrade

three years earlier, he argued that not only did she not deserve it

but neither did the other CSRs. According to complainant, because 98%

of the CSRs are female, this statement was evidence of discrimination.

Complainant contends that her supervisor "treats me differently," citing

an incident when her FOIA work flow increased and he denied that it had

and even stated it had lessened.

In her appeal statement, complainant requests a hearing. However,

the Commission finds that the AJ properly granted the agency's motion

for summary judgment. Although the record does not establish whether or

not complainant's purported reply was received by the AJ, the Commission

is not persuaded by the document. Complainant has not established that

there was a genuine issue of material fact. We find that the AJ properly

issued a decision without a hearing.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

As noted above, complainant was not upgraded to the GS-13 level because

her duties did not justify it. The position description for her job, a

supplemental list of her duties provided by complainant, and observations

by the HR official resulted in his finding that complainant's position was

properly classified at GS-12. When compared to her co-worker, who shared

the same supervisor, the co-worker's position description stated she was

responsible for the Congressional Services Inventory. Contrastingly,

complainant admits she does not have such duties. Complainant argues that

her "national work" (i.e. bi-weekly conference calls on national issues,

attending annual CSR conferences) and FOIA assignments should entitled

her to the GS-13 level. Her contentions, however, to not establish that

she was denied the upgrade due to her national origin or sex.

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

finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 8, 2009

__________________

Date

1 The formal complaint only contained the basis of national origin,

but the basis of sex was added when complainant raised it during the

investigation.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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