Virgilio W.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Jan 13, 2016

0120143109 (E.E.O.C. Jan. 13, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Virgilio W.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense,
Agency.

Appeal No. 0120143109

Hearing No. 570-2014-00092X

Agency No. 2012-FMD-039

DECISION

Complainant filed an appeal from the Agency’s September 25, 2014 Final Order concerning
his 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst, Policy Manager, at the Agency’s Financial Management Division facility in
Washington, District of Columbia. On October 22, 2012, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of race (African-
American), religion (Muslim), and age (over 60) when:

On August 8, 2012, S2 rejected Complainant’s Request for Reconsideration of
his performance appraisal, stating that it was "unwarranted.”

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. When
the Complainant did not object, the AJ assigned to the case granted the Agency’s July 30, 2014
motion for a decision without a hearing. The AJ issued his Decision without a hearing on
September 3, 2014.

In his Decision, the AJ found that the material facts were undisputed. Specifically, the AJ
found that Complainant failed to establish a prima facie case of discrimination on any basis
because Complainant failed to identify any similarly situated employees, not in his protected
groups, who were treated better than he was under the same circumstances. The AJ noted
that, even if he had presented a prima facie case, the Agency articulated a legitimate,
nondiscriminatory reason for its decision to rate Complainant’s performance as unacceptable.
As the Agency set forth in its motion for summary judgment, Complainant failed to complete
an identified assignment in a timely manner and was therefore rated unsatisfactory in a critical
element for the reviewing period. The AJ found that the rating Complainant received was
reasonable in light of the project Complainant failed to complete. The AJ concurred with the
Agency that Complainant failed to show that S2’s reasons were a pretext to mask
discrimination. The AJ found that S2 refused to change Complainant’s rating after he
reviewed the supporting evidence, noting that Complainant failed to present evidence from
even one witness to support his belief that S2’s decision was motivated by race, age, or
religious discrimination. In the absence of any evidence linking Complainant’s race, religion,
or age to his performance rating, the AJ found that summary judgment was appropriate and
concluded that Complainant failed to show that he was subjected to discrimination as alleged.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

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.
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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).

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 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 the instant case, we find the AJ properly issued his Decision without a hearing. We concur
with the AJ that the material facts are undisputed. Specifically, we note that in his affidavit,
S2, Complainant’s second level supervisor, states in response to Complainant’s charge that S2
determined ahead of time that S2 would not change Complainant’s rating, that:

I [S2], performed a review on the information that was presented and made my own
inquiries to the Complainant and the Complainant's supervisor to better understand both
positions. Once I had collected and reviewed all of the information, I made a thoughtful
and informed decision that the Complainant's request for a modification of his
performance rating was baseless.
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We find that S2 did conduct the review that Complainant sought. We find no dispute that S2
reviewed the rating S1 gave Complainant as well as the evidence S1 cited to support the rating.
Even so, S2 made no change to Complainant’s performance rating because, as S2 stated, he
found no basis upon which to make any change. We find no dispute that a critical element of
Complainant’s performance was Policy Management and that Complainant was tasked by
March 20122

with completing a draft of a Financial Management Division (FMD) policy and
Operating Instructions (OI) to be completed in June 2012. We further find no dispute that
Complainant’s draft of the identified policy required numerous changes and corrections (the
record indicates that the draft was the subject of approximately 36 corrections or revisions,
which Complainant described as “endless” in September 2012) and was the task identified in
his performance appraisal that Complainant failed to complete on time. We find no dispute
that Complainant’s supervisor, S1, gave Complainant a “U” or unacceptable rating in the
critical element of policy management for Complainant’s fiscal year (FY) 2011/2012
performance appraisal. We concur with the AJ, that Complainant presented no evidence
linking his race, religion, or age to S2’s decision to decline to change Complainant’s
performance appraisal rating for FY 2011/2012 after Complainant requested reconsideration.
CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Order, finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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.

2 The record indicates that Complainant may have been assigned to draft the policy in question
as late as April 2012, and for purposes of summary judgment, we assume that Complainant
was tasked with drafting the identified policy in April 2012, though he may have actually
begun this task earlier.
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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, 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 (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, Director
Office of Federal Operations

January 13, 2016
Date