0120122557
11-06-2012
Chothet Schecher, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Chothet Schecher,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120122557
Hearing No. 550-2012-00021X
Agency No. 11-R9FAS-CCS-10
DECISION
On May 18, 2012, Complainant filed an appeal from the Agency's April 19, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to show that she was discriminated against as alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated against and subjected to reprisal when she received a management directed change in duty station notice.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Assistant, GS-05 at the Agency's Western Distribution Center of the Federal Supply Service facility in San Francisco, California. The record reveals that in 2007, an Agency-wide reorganization took place, and Complainant's function was transferred from the San Francisco Center to the Western Distribution Center (WDC) in French Camp, California. Complainant had worked at the San Francisco Center for approximately twenty-four years. Notwithstanding, the reorganization Complainant was allowed to remain in San Francisco for four additional years even though her function was properly assigned to and paid for by the WDC. Complainant was told in February 2010, however, that she would have to physically transfer to WDC by 2011. Complainant was also advised again in July 2010, in a conference call involving her representative, that she would be transferred to the new location in 2011.
On March 3, 2011, the General Manager of the WDC issued a letter to Complainant entitled, "Management Directed Change in Official Duty Station" she was informed that she would be transferred to WDC effective April 24, 2011. Complainant acknowledged receipt on March 4, 2011. She signed a decision letter on March 17, 2011, indicating that she was accepting the transfer. Complainant indicated however that she was signing the document under extreme duress. Subsequently, rather than work at the WDC, Complainant submitted a letter indicating that she had chosen to retire effective May 31, 2011,
Thereafter, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Chinese), sex (female), religion (Buddhist), color (Yellow), age (60), and reprisal for prior protected EEO activity when she received a management-directed change in official duty station on March 4, 2011.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Complainant submitted a motion to amend1 and the Agency submitted a motion to dismiss. The AJ found that the Agency's motion was a motion for a decision without a hearing. The AJ issued a decision without a hearing on March 22, 2012. The AJ found that Complainant failed to show that she was subjected to discrimination. Specifically, the AJ determined that Complainant's claim of reprisal failed because she had not engaged in prior protected EEO activity. Further, the AJ determined that Complainant presented no evidence whatsoever that the decision to relocate her was related to her protected bases. Complainant argued that two GS-12 white male employees were treated more favorably, in that, they were allowed to stay in San Francisco until their retirement. The evidence however, showed that one of the comparators retired before the May 2007, realignment and the other comparator retired four months after the realignment. The AJ indicated that Complainant failed to show that anyone not of her protected bases was treated more favorably with regard to the reorganization. Accordingly, the AJ found that Complainant failed to demonstrate that she had been subject to discrimination. 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 contests the AJ's procedural determinations. Complainant also argues that the Agency failed to comply with the MD-110 and maintains that the AJ was partial to the Agency.
In response, the Agency maintains that the AJ correctly issued a decision without a hearing. The Agency indicated that it articulated a legitimate nondiscriminatory reason for its action and Complainant failed to show that the reason was pretext for discrimination. The Agency indicated that, assuming arguendo, procedurals errors were made when a hardcopy of the ROI was not given to Complainant's representative, Complainant was not prejudiced by this error because a hardcopy was later forwarded to Complainant's representative. The Agency also maintained that the AJ did not show any favoritism.
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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.
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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ correctly issued a decision without a hearing as there are no material facts at issue. Further, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was sent a notice to relocate as the result of the Agency's realignment. The notice was sent after it was determined that WDC could no longer pay for a contractor to work in the place of Complainant at WDC. Further, we agree that the comparators offered by Complainant were not similarly situated to her as the evidence shows that one comparator retired before the realignment and the other retired soon after the realignment was announced. Therefore, the Commission finds that Complainant failed to show that the Agency's reasons were pretext for discrimination. We further find that Complainant has offered no evidence that discriminatory animus was involved in this case. Accordingly, we find that Complainant failed to show that she was discriminated against as alleged.
With respect to the matters raised by Complainant on appeal regarding the AJ's procedural rulings, we note that Administrative Judge's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ's rulings represented an abuse of discretion in these matters.
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 which found Complainant failed to prove that she was subjected to discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
____11/6/12______________
Date
1 Complainant's representative maintained that he received a CD of the ROI instead of a hard copy of the document. The representative also maintained that he did not receive a copy of Complainant's supplemental affidavit when he prepared her response to the Agency's motion. The AJ found that Complainant was not prejudiced by the omission and dismissed the motion.
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0120122557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122557