0120150355
04-27-2017
Bertie J.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bertie J.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120150355
Hearing No. 570-2010-01006X
Agency No. ARMYER09AUG03678
DECISION
On October 31, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 6, 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 which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing. The AJ found that Complainant did not demonstrate that she was subjected to discrimination as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in granting the Agency's motion for summary judgment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Business Operations Manager, WF-4/5 at the Agency's Army, Morale, Welfare, & Recreation Directorate, Officers Club in Fort Myers, Virginia. In December 2008, a sensing session was held after Complainant's employees complained that they were not being paid properly, their time sheets were being amended, and they were being forced to take leave. Based on the comments from the sensing session a 15-6 investigation was initiated.
On April 16, 2009, Complainant's first line supervisor issued her a Notice of Proposed Separation for Cause. The charges were: intentionally dishonest conduct, with three specifications; submitting falsified timecards to non-appropriated funds payroll with three specifications; violation of a DOD Manual AR 215-3 with three specifications; and conduct unbecoming a non-appropriated funds employee with six specifications. It was noted that Complainant's misconduct involved directing the timekeeper to change time cards for subordinates removing premium pay hours worked and overtime hours worked. She forced part-time employees to use annual leave rather than schedule them to work a minimum of 20 hours when business was slow, she approved schedules that resulted in employees working more than six days consecutively, with some employees working as many as 14 days in a row, and she did not charge the correct amount for parties hosted by her, her family, or organizations associated with her. Complainant provided an oral reply and documents in response to the Notice of Proposed Separation for Cause on June 19, 2009. An investigation was conducted and thereafter Complainant's second-line supervisor sustained the charges and terminated Complainant's employment, effective July 13, 2009. Complainant filed a grievance regarding the matter and the charges were again sustained.
Complainant alleged that three white supervisors were charged with violations but they were not terminated from their positions. On October 28, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (Ethiopian), sex (female), and religion (Orthodox) when on or around December 30, 2008, she was the subject of an 15-6 investigation which lead to her removal from her position as the General Manager, NF-5, of the Ft Myer, Virginia, Officer's Club, and from the federal service.
After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, however, the AJ assigned to the case granted the Agency's motion for summary judgment and issued a decision without a hearing on September 30, 2014. The AJ found that Complainant failed to establish a prima facie case of discrimination because she did not show that anyone that committed offenses as serious as those that she was found to have committed were not terminated. The AJ also found that Complainant did not demonstrate that her removal from the Agency was based on discriminatory animus.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, among other things, that the AJ erred in ending her analysis after she found that there were no comparators. Complainant maintains that a full analysis should have been conducted. Moreover, Complainant asserts that there are material facts at issue and that the AJ merely accepted that the charges against her were true, and that this should have mandated a hearing. Further, she maintains that the Agency's primary witness resigned because he was facing embezzlement charges. As such, she maintains that the Agency's evidence is tainted.
In response, the Agency maintains, among other things, that there are no material facts at issues here. According to the Agency, an investigation into the matter was conducted and the charges were found to be valid. Thereafter, Complainant grieved her termination and an additional extensive inquiry into Complainant's allegations was made. Her request for reinstatement was denied. The Agency maintains that Complainant continues to make the same arguments that she made in opposition to the findings of the 15-6 investigation, the proposed action and the decision to separate. Finally, the Agency maintains that the three employees Complainant compares herself to were not engaged in the same types of misconduct. Additionally, all the employees were under a different supervisory structure than Complainant. Accordingly, the Agency asserts that Complainant presented no evidence which would require a reversal of the AJ's decision.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
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.
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).
The AJ in this case correctly issued a decision without a hearing as the discovery and notice requirements were met and we find that no material facts are at issue.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated from her position for cause based on an investigation that identified multiple incidents of misconduct. We find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination or that the Agency acted because of a prohibited reason.
Further, we find that Complainant's arguments on appeal are not persuasive and are not supported by the record. Specifically, we find that other than conclusory statements, she has not provided any persuasive evidence that the actions taken against her were based on discriminatory animus nor do we find that they indicate that there are genuine issues of material fact in dispute. We note in this regard that the AJ correctly determined that the comparators offered by Complainant were not similarly situated to her. The record showed that one of the comparators was never charged with any violation, and did not have a 15-6 investigation conducted against him. The second comparator had employees wash his car and paint his house, and, as a result, was suspended for five days. The third comparator made sexual comments and touched an employee, and, as a result, was removed.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order which fully implemented the AJ's finding that Complainant did not show that she was subjected to discrimination.
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
_4/27/17_________________
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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