0120130562
10-09-2014
Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130562
Hearing No. 420-2012-00114X
Agency No. 7K0J11010
DECISION
On October 26, 2012, Complainant filed an appeal from the Agency's September 28, 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. 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.
ISSUES PRESENTED
The issues presented herein are:
1. Whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate in this case;
2. Whether the Agency's and AJ's decision to deny Complainant's request to amend her complaint is consistent with our regulations and case precedent; and
3. Whether Complainant proved discrimination by preponderant evidence on the basis of reprisal (prior EEO activity).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Non-Appropriated Fund (NAF) Guest Services Representative at the Agency's Tyndall Air Force Base located in the state of Florida. On June 30, 2011, Complainant filed a formal complaint in which she alleged discrimination on the above-referenced basis when (a) she was denied annual leave on four occasions in March 2011; (b) she was issued an oral admonishment on March 31, 2011; and (c) her scheduled was changed to include late duty-hours. The Agency accepted the complaint for investigation.
Before the investigation commenced, Complainant contacted the EEO office on January 17 and 24, 2012 and attempted to amend her complaint to include additional incidents of alleged discrimination, that is, whether she was discriminated against on the basis of reprisal when she was given an oral admonishment on August 18, 2011, for insubordination regarding e-mail and for not following the proper chain of command; and she was given a lowered performance appraisal on October 19, 2011, and denied a performance award on November 21, 2011. On January 26, 2012, the Agency notified Complainant that it would not accept the additional incidents of discrimination for amendment and also informed her that if she requested a hearing upon the conclusion of the investigation of her already-accepted complaint, the Agency's determination regarding the amended claims were reviewable by an AJ if she chose to request a hearing.
When the Agency completed its investigation of the accepted allegations, Complainant was notified of her right to request a hearing before an AJ or, alternatively, a final decision from the Agency based on the record. Complainant timely requested a hearing. Thereafter, her case in its entirety was forwarded to the appropriate EEOC District Office and assigned to an AJ. On June 6, 2012, the AJ denied Complainant's request to amend her complaint.
On August 20, 2012, the Agency filed a motion for summary judgment based on its belief that there were no issues of material fact in dispute. On September 5, 2012, Complainant filed a motion in opposition to the Agency's motion. On September 17, 2012, the AJ assigned to the case issued a decision in which he granted the Agency's motion and also found that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
Both parties' contentions on appeal merely restated their respective cases-in-chief. Therefore, they will not be addressed separately but instead are inherently discussed in the "Analysis and Findings" section below.
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 Chap. 9, � VI.B. (Nov. 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").
ANALYSIS AND FINDINGS
1. Decision without a Hearing
Initially we consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. 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.
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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we have no reason to disturb the AJ's decision to issue a ruling without a hearing.
2. Dismissal of Amended Claims
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
Here, the Agency and the AJ denied Complainant's attempt to amend her previously accepted complaint with incidents of discrimination which occurred on August 18, 2011, an oral admonishment for insubordination regarding an email and failure to follow the proper chain of command and on October 19, 2011, regarding a lowered performance appraisal. Yet, Complainant did not contact an EEO counselor regarding these matters until January 17 and 24, respectively, beyond the 45-day time limit imposed by our regulations. Therefore, the Agency and AJ were correct in denying Complainant amendment request.
To the extent Complainant alleges that these two new incidents of discrimination were like or related to the ones already accepted in a previously filed matter and therefore did not require counseling, we disagree. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). Upon review, we find that these two new incidents to discrimination did not add to or clarify the original complaint nor could it have been reasonably expected to grow out of it.
3. Reprisal Discrimination
The only remaining issue before us is whether Complainant has proven discrimination on the bases of reprisal regarding the issues accepted by the Agency for investigation. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume for purposes of our analysis that Complainant has established a prima facie case of discrimination with respect to her prior EEO activity.
We now turn our attention to whether the Agency articulated legitimate, nondiscriminatory reasons for taking the actions alleged to be discriminatory. Burdine at 253. The Agency stated that Complainant was denied leave on four occasions in March 2011 because she did not have supervisory approval prior to taking time off from work. The Agency stated that Complainant was issued an oral admonishment because she booked rooms despite being told not to do so. Finally, the stated that Complainant's schedule was changed to include late duty-hours in order to allow for transitions in shifts. We find the Agency's stated reasons for its actions to be legitimate and nondiscriminatory.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus for engaging in prior EEO activity.
Complainant has failed to carry her burden. She offers only unsupported statements and speculation that she believes demonstrate that the Agency's decisions to take the actions alleged to be discriminatory were retaliatory. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a summary judgment ruling was appropriate, his decision to deny Complainant's amendment request is consistent with our regulations and case precedent, and that his finding of no discrimination is supported by a de novo review of the record. We therefore AFFIRM the Agency's final order which adopted in full the AJ's findings.
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
October 9, 2014
Date
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0120130562
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130562