0120152205
04-26-2017
Felicidad S.,1 Complainant, v. Michael R. Pompeo, Director, Central Intelligence Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felicidad S.,1
Complainant,
v.
Michael R. Pompeo,
Director,
Central Intelligence Agency,
Agency.
Appeal No. 0120152205
Hearing No. 570-2011-01048X
Agency No. 10-03 & 10-20
DECISION
On June 11, 2015, Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency order dated May 14, 2015, concerning her consolidated equal employment opportunity (EEO) complaints 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Senior Inspector General (IG) Auditor, GS-14 assigned to the National Reconnaissance Office (NRO), Office of the Inspector General, West Coast Field Office in Los Angeles, California. All management referenced in this decision are with NRO.
On October 26, 2009 and March 23, 2010, Complainant filed two EEO complaints alleging that NRO discriminated against her based on her race (Black), sex (female), disability (perceived as having comprehending and memory problems), and age (48) when:
1. On July 10, 2009, she received notice of the request to convene a Personnel Evaluation Board (PEB) to evaluate her continued employment due to poor performance (the request was formally made by the Inspector General, her fourth or higher line supervisor - (S4));
2. On August 10, 2009, she received notice to take a Fitness-for-Duty (FFD) examination (S4 requested the FFD);
3. She was subjected to a hostile work environment when from August 2009 to January 2010, actions were taken by NRO to force her out of her employment; and
4. She received an "Unacceptable" Performance Appraisal for the period ending August 31, 2009 (the rating official was her second line supervisor (S2) who evaluated Complainant's performance with input from Complainant's first line supervisor (S1). The concurring rating official was Complainant's third line supervisor).
Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Thereafter, the AJ issued a decision without a hearing finding no discrimination, which the Agency adopted in its final order.
The AJ found as follows. S2 recommended a PEB in June 2009 because over the last three years Complainant received numerous performance counseling sessions which were unsuccessful, and received repeated below successful performance evaluations where S2 was the rater, i.e., for August 1, 2007 - July 31, 2008, minimally successful; for August 1, 2008 - April 24, 2009 unacceptable, and for April 25, 2009 - August 31, 2009, - unacceptable. Complainant received relevant formal training, and S1 gave her regular guidance and substantive feedback. Despite this, S2's assessment of Complainant's performance was that she was unable to complete her audit work and it was of poor quality. Complainant's audit work was not done properly - she did not do rigorous field work and was unable to organize her work into a final report.
Pending the FFD, S4 suspended the convening of the PEB. The AJ found that S4 requested the FFD because Complainant had difficulty interpreting, remembering, and following guidance on routine audit assignments, despite extensive supervision, and her performance was unacceptable. The AJ found that the FFD was job related and consistent with business necessity, that the Agency gave a legitimate, nondiscriminatory reason for the FFD, and Complainant did not show a discriminatory motive.
Complainant resigned in January 2010, after accepting a job with another Agency. The AJ found that the Agency did not create a hostile work environment leading to Complainant's resignation. She found that Complainant failed to adduce any evidence that its actions, many recounted above, were pretext for prohibited discrimination. She found that there was no dispute of material fact that the Agency's actions were grounded in Complainant's poor performance, not because of her membership in protected groups.
On appeal, in a variety of ways, Complainant disputes NRO's assessment of her performance. In opposition to the appeal, the Agency argues that the AJ's decision should be upheld.
ANALYSIS AND FINDINGS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
We find, for the same reasons as the AJ, that Complainant failed to prove discrimination. S1 and S2's assessment of Complainant's performance was backed up by their detailed statements, and extensive documentation, including contemporaneous recommended edits to her work. In the absence of evidence that their assessment was based on unlawful criteria, we will not second guess their assessment. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981).
The Agency's final order is AFFIRMED.
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
April 26, 2017
__________________
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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