0120141682
10-29-2014
Complainant, v. Chuck Hagel, Secretary of Defense Agency.
Complainant,
v.
Chuck Hagel,
Secretary of Defense
Agency.
Appeal No. 01-2014-1682
Hearing No. 450-2013000305X
Agency No. AAFES13031
DECISION
On April 1, 2014, Complainant filed an appeal from the Agency's March 5, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that she was discriminated against as alleged.
BACKGROUND
Complainant was a Career Management Technician II, Pay Band (PB) 3C, on the Human Resources (HR) Contingency Team at Army & Air Force Exchange Service (AAFES) headquarters, in Dallas, Texas. In December 2007, Complainant deployed to the Middle East as a PB 3C HR Administrative Technician. While abroad, she was temporarily promoted and served in managerial positions. At the time of events giving rise to this complaint, in September of 2012, Complainant returned to her home duty station in Texas. The Vice President of HR temporarily detailed her to a PB 3A HR Technician position, at the AAFES headquarters. Complainant remained in this position until she retired on December 31, 2012.
On January 2, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Turkish),1 religion (Muslim), disability (Depression/Posttraumatic Stress Disorder (PTSD)), and age (59) when:
1. effective on or about September 8, 2012, she returned early from deployment to Afghanistan; and
2. effective November 10, 2012, she was placed into a HR Technician I, PB 3A position, instead of the Contingency Operations Specialist, PB 4A position offered to her by the Human Resources Manager (HRM).
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 30, 2013, motion for a decision without a hearing and issued a decision without a hearing on February 18, 2014.
The AJ found the following undisputed facts: Prior to deployment in December 2007, Complainant was a Career Management Technician II, PB 3C, full time employee on the HR Contingency Team at AAFES headquarters. After she was deployed to Iraq as a PB 3C HR Administrative Technician, an intermittent employee was assigned to Complainant's position in September 2008. In November 2010, the intermittent employee received a temporary promotion to an intermittent PB 4A position due to a decline in staffing needs. The position Complainant previously held no longer existed. Complainant was also temporarily promoted to PB 3D HR Manager in May 2011, while deployed in Iraq and later Afghanistan. Complainant requested to end her tour and return to her home duty station on July 12, 2012. Her first line supervisor (S1), the HRM, immediately approved the request. Complainant's deployment ended on September 8, 2012 and S1 gave her a Readiness Rating for Management of "well positioned at current level" on September 4, 2012. Complainant stated that in July or August of 2012, S1 promised her promotion to PB 4A on the HR Contingency Team, after deployment. S1 denied this and stated that he did not have the authority to make such promises. According to AAFES rules, associates should return to their previous positions after deployment. The Vice President of HR temporarily detailed Complainant to a PB 3A HR Technician position after her deployment; because she claimed that there were no positions due to a decline in troop strength. Complainant stayed in this position until she retired on December 31, 2012.
The AJ found that Complainant had a disability under the Rehabilitation Act. Among other things, the AJ found that assuming arguendo that Complainant established a prima facie case of national origin, religion, disability, and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ noted that the Agency showed evidence that Complainant requested to return to her home duty station in July 2012, prior to the end of her deployment on September 8, 2012. Additionally, the AJ found that although Complainant was temporarily detailed to a 3A HR Technician position upon return from deployment, the Agency provided Complainant with one of the few available positions at headquarters and provided her with the same grade and pay that she had previously. The AJ found that the Complainant failed to present additional evidence to show that the Agency's reasons for its actions were pretext for discrimination.
The AJ also found that Complainant claimed that she was subjected to a constructive discharge in her opposition to the Agency's motion for a decision without a hearing. The AJ found that Complainant failed to establish that she was subjected to harassment such that she was forced to retire.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination. Complainant appealed the Agency's decision to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant primarily argues that she did not voluntarily request to end her tour in the Middle East. Complainant again alleges that the Agency forced her to retire early. Consequently she claims that she has lost out on the significant financial benefits from employment and deployment. The Agency provides no statements on 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, 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 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).
After a careful review of the record we find that no genuine issue of material fact exists. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she responded to the motion, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. Therefore, we find the AJ's issuance of a decision without a hearing was appropriate.
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). Complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. See Hicks, supra.
In this case, we find that assuming arguendo, Complainant established a prima facie case of national origin, religion, disability, and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding her first claim, the Agency presented evidence that Complainant requested to end her tour in the Middle East early and return to her home duty in Dallas, Texas. Even if her supervisors encouraged her to make the decision to return to the United States, nothing in the record showed that Complainant did not freely chose to request to end her tour of duty. Further, Complainant has not offered any evidence to show that the Agency's proffered reasons lacked credence. As such, we find that Complainant failed to show that she was discriminated against as alleged.
With regard to claim 2, The Agency noted that Complainant's position no longer existed and available positions were limited due to a decline in troop strength. Thus, the Agency provided a legitimate, nondiscriminatory reason for temporarily placing Complainant in a lower position, upon her return from deployment. Further, Complainant was still at the same grade and received the same pay.
Complainant is correct that it is Agency policy to return associates to their previous position after deployment. However, in this case we note that it was not possible for Complainant to return to her position because it no longer existed. To the extent that Complainant argued that she should have been promoted, we note that nothing in the record established that S1 had the authority to offer her a promotion. The Agency showed that Complainant was aware that promotions for regular employees occur through standard Agency selection processes. Thus the Agency illustrated that Complainant should not have expected to receive a promotion without applying through conventional means. Complainant did not offer any evidence to show that the Agency's proffered reasons for returning her to her old position or not promoting her were not worthy of credence. As such, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. 2
Finally, we note that in Complainant's response to the Agency's Motion, she alleged for the first time that the Agency forced her into retiring early. The AJ analyzed Complainant's claim and found that she failed to establish a constructive discharge claim. We find that the AJ erred in analyzing the merits of this claim. The record reveals that Complainant did not allege a claim of constructive discharge when she initially contacted her EEO counselor. Complainant did not originally allege that the Agency forced her into early retirement. Consequently, the Agency did not conduct an investigation with regard to the constructive discharge claim for early retirement. Because this matter was not investigated, we find Complainant should have been given the opportunity to seek EEO counseling on her claim in order to develop the record on this claim. Accordingly, we decline to address the merits of this claim. If the Complainant chooses to proceed with her constructive discharge claim, we recommend that she contact an EEO counselor regarding that claim.
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 adopting the AJ's decision without a hearing finding no 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
__10/29/14________________
Date
1 Complainant considers her national origin to be Turkish.
2 We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex. 477 U.S. at 344.
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01-2014-1682
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141682