EEOC Appeal No. 0120150984
04-04-2017
Verlie S. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Verlie S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150984
Hearing No. 440-2013-00207X
Agency No. 4J-000-0002-13
DECISION
On December 26, 2014, Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 4, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case without a hearing; and (2) whether the AJ properly determined that the preponderance of the evidence in the record did not establish that Complainant was subjected to discrimination based on race and/or sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EAS-19 Labor Relations Specialist at the Agency's Central Illinois District facility in Bedford Park, Illinois. Complainant had worked as an EAS-19 Labor Relations Specialist for the Agency since January 9, 2009.
In October 2012, Complainant timely applied for an EAS-23 Labor Relations Specialist position with the Great Lakes Area Office. On February 7, 2013, the Agency's HR Shared Services Center sent Complainant an email, which stated that the October 2012 vacancy had been cancelled. On Friday, February 8, 2013, Complainant emailed the Area Labor Relations Manager (ALRM) to request a detail to the EAS-23 Labor Relations Specialist position. On Tuesday, February 12, 2013, Complainant sent ALRM a second email asking whether he had been able to give her request consideration. On February 12, 2013, ALRM responded, advising Complainant that the position was being reposted, that she should consider reapplying to the reposted vacancy announcement, and that he would review her request for a detail and her application in conjunction with other applications received in response to the reposted vacancy announcement.
From February 12 to 27, 2013, the Agency reposted the EAS-23 Labor Relations Specialist position, and Complainant timely applied for the position. ALRM stated that his supervisor, the Area Human Resources Manager advised him that he could select a permanent Labor Relations Specialist as well as a detailee from the vacancy package. According to ALRM, a review board, consisting of a chair (C1) and two additional members (M1 and M2), reviewed the applications. C1, M1, and M2 were all current EAS-23 Labor Relations Specialists. C1 stated that the panelists scored the applications based on the responses to the identified Knowledge, Skills, and Abilities (KSAs) for the position. The first KSA related to knowledge of labor relations processes for step 3 and step 4 grievances. According to M1, Complainant's response to the first KSA did not indicate that she had any knowledge of these processes. M2 agreed that Complainant's response to this KSA was weak. The panel referred the top three candidates to ALRM for interviews. Complainant was not referred for an interview. According to the record, Complainant and a Caucasian male tied for the fourth-highest score. ALRM stated that he interviewed the top three candidates, selected a Caucasian female (S1) for the permanent Labor Relations Specialist position, and selected another Caucasian female (S2) for a detail. According to ALRM, the third interviewed candidate (S3), a Caucasian male, withdrew his application during his interview.
The record contains Complainant's application for the reposted vacancy announcement, as well as the applications of the three candidates referred for an interview. In her application, Complainant listed her work history but did not explain the relevance of her experience. Complainant's response to the first KSA does not appear responsive, as she discusses a step 2 grievance rather than her knowledge of step 3 and step 4 grievances. The record reflects that, excepting one year as an Acting Complement Coordinator, S1 worked as a Labor Relations Specialist since March 1, 2006, including an 11-month detail as an EAS-23 Labor Relations Specialist. In her application, S1 provided details about the relevance of her experience to the vacancy and clearly and concisely responded to the first KSA. According to the record, S2 had worked as an EAS-19 Labor Relations Specialist since June 7, 2008. S2's application provided details explaining why her experience was relevant and clearly and concisely responded to the first KSA. S3 had worked in Labor Relations since August 1, 2001, including multiple details as an EAS-22 or EAS-23 Labor Relations Specialist. S3's application described his experience and responded directly to the first KSA.
On April 29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:
1. On February 8 and 13, 2013, her requests for a detail opportunity to the Great Lakes Area Labor Relations Specialist were denied; and
2. On March 11, 2013, she was denied an interview for the Great Lakes Area Labor Relations Specialist position.
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 AJ. Complainant timely requested a hearing.
On January 2, 2014, Complainant filed a Motion to Compel, in which Complainant alleged that, although the Agency had responded to her discovery requests, the Agency had failed to fully respond to her discovery requests. On January 29, 2014, the AJ granted in part Complainant's Motion to Compel. Noting that Complainant's motion did not specifically explain which discovery requests were deficient and why, the AJ ordered the following: (1) that the Agency produce a privilege log for any documents withheld based on privilege; and (2) that the Agency produce performance reviews for 2011-2012 for Complainant and S2. On February 6, 2014, the Agency produced the performance reviews and a statement that it had not withheld any documents based on privilege. On February 5, 2014, Complainant filed a Motion to Request Extension of Time for Discovery so that she could take seven depositions. On February 13, 2014, the AJ denied this Motion, noting that Complainant waited until after the end of discovery to request an extension or serve notice of the depositions and failed to show good cause for extending the time limit.
Over Complainant's objections, the AJ assigned to the case granted the Agency's February 18, 2014, motion for a decision without a hearing and issued a decision without a hearing on November 24, 2014. With respect to Complainant's first claim, the AJ found that Complainant was not aggrieved because there was no detail opportunity available in February 2013. In the alternative, the AJ found that Complainant did not establish a prima facie case of discrimination because she did not identify any similarly situated employee who was treated more favorably in February 2013.
Regarding Complainant's second claim, the AJ found that the Agency proffered legitimate, nondiscriminatory reasons for its actions. Specifically, S1 and the candidate who withdrew his application had more Labor Relations experience than Complainant and had previously served in details to the position. Moreover, while S2 had not previously been detailed to the position, she had more Labor Relations experience than Complainant and submitted a more detailed application. The AJ determined that Complainant failed to establish that these legitimate, nondiscriminatory 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. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there was no reason for her non-selection other than her race. Complainant also argues that the Agency failed to comply with the AJ's Order granting her Motion to Compel. Complainant requests that the Commission find that she was discriminated against by the Agency.
The Agency did not submit any contentions in response to Complainant's appeal.
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 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 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").
As a preliminary matter, we note that the proper time to address hearing stage discovery deficiencies is during the hearing stage, and there is no evidence in the record that Complainant informed the AJ that she believed that the Agency had failed to comply with the AJ's January 29, 2014, Order.2 Furthermore, the record appears fully developed such that a fact finder can determine whether discrimination occurred. Accordingly, we turn to the merits of Complainant's appeal.
Decision without a Hearing
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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Here, we find that the case was properly decided without a hearing because Complainant had sufficient opportunity to engage in discovery prior to responding to the Agency's motion for a decision without a hearing and because no genuine issue of material fact exists.
Disparate Treatment
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). She 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 Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by showing that her qualifications are "plainly superior" to those of the selectee. See Patterson v. Dep't of the Treasury, EEOC Request No. 05950156 (May 9, 1996).
Here, the Agency has provided legitimate, nondiscriminatory reasons for not selecting Complainant for the permanent EAS-23 Labor Relations Specialist position or for the detail. Specifically, Complainant's application did not explain the relevance of her experience, and her answer to the first KSA appeared nonresponsive. Moreover, S1, S2, and S3 had more Labor Relations experience and responded directly to the first KSA. Additionally, S1 and S3 had previously been detailed to EAS-23 Labor Relations Specialist positions. Finally, S2's application explained in detail the relevance of her work experience in her application. The preponderance of the evidence does not establish that these legitimate, nondiscriminatory reasons are pretext for discrimination.
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 because the case was properly decided without a hearing and the preponderance of the evidence in the record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
4-4-2017
__________________
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 Moreover, we note that the record indicates that the Agency fully complied with the AJ's January 29, 2014, Order.
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