0120111300
11-09-2012
Mollie P. Frazier, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Mollie P. Frazier,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120111300
Hearing No. 420-2010-00012X
Agency No. HS-09-CBP-0039-07-110102
DECISION
On December 20, 2010, Complainant filed an appeal from the Agency's October 15, 2010, final order1 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 are: (1) whether the AJ's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency subjected her to discrimination and hostile work environment harassment on the bases of race (African-American) and sex (female).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory CBP Agriculture Specialist, GS-0401-12 at the Agency's Port of Mobile in Alabama. Complainant's First Level Supervisor was the Assistant Port Director (Trade) (S1 - African-American, female). Complainant's Second Level Supervisor was the Area Port Director (S2 - Caucasian, male). Complainant's Third Level Supervisor was the Director of Field Operations (S3 - Hispanic, male). Prior to the formation of the Agency in 2003, Complainant worked at the U.S. Department of Agriculture.
Denial of CBP Officer Enhanced Retirement Coverage
In 2008, the Agency implemented enhanced retirement coverage to CBP Officers. According to Agency documents, the coverage applied to two categories of employees: "primary" CBP Officers and "secondary" CBP Officers. "Primary" CBP Officers were defined as employees who hold positions within the CBP Officer, GS-1895 job series. "Secondary" CBP Officers were defined as employees who transferred directly from "primary" positions to supervisory, managerial, or administrative positions after performing work in "primary" positions for at least three years.
On April 24, 2008, Complainant emailed the Office of Human Resources Management (OHRM) to ask if she qualified for the enhanced retirement coverage. In a July 30, 2008 letter, the OHRM denied Complainant coverage on the basis that she was ineligible. Specifically, OHRM stated that a review of Complainant's work history showed that she did not have the requisite three years of "primary" frontline experience at a port of entry.2
Assignment to Boarding Work Unit and Office Relocation
There were four work units at the Port of Mobile: Advanced Targeting; Boarding; Cargo; and Operations. Each work unit had a mix of GS-1895 CBP Officers and GS-0401 CBP Agriculture Specialists. Complainant and three Supervisory CBP Officers each supervised a work unit.
In an October 14, 2008 memorandum titled "Supervisor Rotation Policy," the Agency articulated a new policy, effective January 1, 2009, requiring 25 percent of CBP supervisors at each port of entry to rotate annually between work units. In an October 22, 2008 email, the Agency stated that Supervisory CBP Agriculture Specialists should be rotated, where possible, within their specialty and that the policy "does not require specialty Supervisors to be rotated within general Supervisory rotation plans, unless it is the current practice of that field office."
On January 23, 2009, management reassigned Complainant from the Operations work unit to the Boarding work unit. In the Operations work unit, Complainant supervised three CBP Officers and no CBP Agriculture Specialists. In the Boarding work unit, Complainant supervised seven CBP Officers and three CBP Agriculture Specialists.
In conjunction with her reassignment to the Boarding work unit, management notified Complainant that her office would be relocated from the Royal Street building to the GM&O building. Complainant averred that she "did not really have a problem moving, but it was the way they handled the move." Specifically, after Complainant had relocated to the GM&O building, management told her that she needed to move her three boxes from the Royal Street building's storage room and to return two chairs to the Royal Street building. Complainant averred that she "was upset [about the boxes] because there [was] no need for this to be done immediately" and felt that she should have been able to keep the chairs.
Non-selection
In October 2008, the Agency announced the position of GS-13 Assistant Port Director (Tactical Operations). The Agency advertised the position as a GS-0340 series position under vacancy announcement number 216583 and as a GS-1895 series position under vacancy announcement number 216658. Both vacancy announcements stated that the position's major duties included being "responsible for directing and managing a myriad of enforcement-related programs designed to address anti-terrorism and border security enforcement activities in the passenger and cargo environments."
Complainant applied for the position under vacancy announcement number 216583. On December 20, 2008, the Agency referred 25 qualified candidates, including Complainant and the Selectee (Caucasian, male), for selection from the vacancy announcements. A panel consisting of S1, S2, and the Port Director of Gulfport (P1 - Caucasian, male) reviewed the applications of the qualified candidates. The panel recommended the Selectee to S3, who then recommended the Selectee to the Selecting Official (SO - Hispanic, male). On February 24, 2009, SO selected the Selectee for the position from vacancy announcement number 216658.
EEO Complaint
On April 15, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and hostile work environment harassment on the bases of race (African-American) and sex (female) when:3
1. On July 30, 2008, she was denied CBP Officer enhanced retirement coverage;
2. On January 23, 2009, she was assigned to supervise the Boarding work unit;
3. In January 2009, after she had relocated her office to the GM&O building, she was asked to move her three boxes from the Royal Street building's storage room and to return two chairs to the Royal Street building;
4. On February 24, 2009, she was not selected for the position of Assistant Port Director (Tactical Operations), GS-0340-13, advertised under vacancy announcement number 216583.
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 April 6, 2010, motion for a decision without a hearing and issued a decision without a hearing on September 23, 2010.
In his decision, the AJ analyzed Complainant's claims under a disparate treatment framework and a harassment framework. Regarding claims 1-3, the AJ found that Complainant failed to establish a prima facie case of discrimination or show that she was subjected to hostile work environment harassment. Regarding claim 4, the AJ found that Complainant failed to establish that the legitimate, nondiscriminatory reasons articulated by the Agency were pretextual.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged. Complainant then filed the instant appeal.4
ANALYSIS AND FINDINGS
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 Ch. 9, � VI.B. (Nov. 9, 1999) (providing that both the AJ'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 EEO MD-110, at Ch. 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").
AJ's Issuance of a Decision Without a Hearing
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 AJ 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 a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond, and she had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment - Claims 1, 2, and 4
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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, a 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).
Claim 1 - Denial of CBP Officer Enhanced Retirement Coverage
Assuming, arguendo, that Complainant established a prima facie case of race and sex discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, a Human Resources Specialist (HRS - African-American, female) averred that Complainant was ineligible for the CBP Officer enhanced retirement coverage because the position that she occupied did not meet the criteria for coverage.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. In an attempt show pretext, Complainant argued that she should be eligible for coverage because her current duties are similar to those of a Supervisory CBP Officer and she supervises CBP Officers.
Upon review, we find that Complainant failed to show that the Agency's explanation is a pretext for race or sex discrimination. The undisputed record reflects that Complainant did not meet the criteria for coverage as a "primary" or "secondary" CBP Officer because she holds the position of Supervisory CBP Agriculture Specialist, GS-0401-12, and has never held a position within the CBP Officer, GS-1895 job series. Despite Complainant's argument that the Agency should have considered her duties and not just her position title, there is no indication that race or sex played a role in the Agency's decision. The record reflects that HRS, who worked in Washington, DC, had never met Complainant and was unaware of her race.
Claim 2 - Assignment to Boarding Work Unit
Assuming, arguendo, that Complainant established a prima facie case of race and sex discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, S2 averred that he assigned Complainant to the Boarding work unit because of the supervisor rotation policy and because it would allow Complainant to better oversee the CBP Agriculture Specialists, more of whom were in the Boarding work unit than in the Operations work unit.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. In an attempt show pretext, Complainant argued that the supervisor rotation policy did not apply to Supervisory CBP Agriculture Specialists. In addition, Complainant argued that she should not supervise CBP Officers and questioned why, unlike a former Supervisory CBP Agriculture Specialist (C1 - Caucasian, female) at the Port of Gulfport, she did not supervise only CBP Agriculture Specialists.
Upon review, we find that Complainant failed to show that the Agency's explanation is a pretext for race or sex discrimination. The Agency's supervisor rotation policy, as clarified in its October 22, 2008 email, did not prohibit the rotation of Supervisory CBP Agriculture Specialists within general Supervisory rotation plans. Moreover, the record reflects that Complainant's new work unit had more CBP Agriculture Specialists than her previous work unit. Although Complainant disagreed with S2's decision to rotate her to the Boarding work unit, she has not shown that such a decision was based on her race or sex. While CP asserted that C1 did not have to supervise CBP Officers, we note that C1 worked at a different port. Employers generally have broad discretion to set policies and to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgment. See Thomas v. Dep't of Transp., EEOC Appeal No. 01945798 (Dec. 12, 1996) (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)).
Claim 4 - Non-Selection
Assuming, arguendo, that Complainant established a prima facie case of race and sex discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, P1 averred that the Selectee was the best choice because of his experience as a firearms instructor, reliability on past projects, and knowledge about all the tactical aspects of the position. In contrast, P1 averred that Complainant's main background was in agriculture and was not a good match for a tactical position. In addition, S2 averred that the Selectee was the best candidate for the position because of his ability to work with other agencies (federal, state, and local) and his performance as the Acting Assistant Port Director (Tactical). Further, S3 averred that the Selectee had the knowledge, skills, and abilities for dealing with the management of tactical operations and the Agency's anti-terrorism mission.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. In an attempt show pretext, Complainant argued that she was more qualified for the position than the Selectee because she had more years of experience with the Agency and more years of supervisory experience.
Upon review, we find that Complainant failed to show that the Agency's explanation is a pretext for race or sex discrimination. In non-selection cases, a complainant may establish pretext by showing that her qualifications are "plainly superior" to those of the selectee. Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)). However, an employer has the discretion to choose among equally qualified candidates. See Tong v. Dep't of Def., EEOC Appeal No. 0120053163 (June 27, 2007). In addition, an employer has greater discretion when filling management level or specialized positions. See Hickman v. Dep't of Justice, EEOC Appeal No. 01A11797 (Dec. 20, 2001) (citing Wrenn v. Gould, 808 F.2d, 493, 502 (6th Cir. 1987). Moreover, an individual is not necessarily more qualified for a position by virtue of possessing greater years of experience. See Ropelewski v. U.S. Postal Serv., EEOC Request No. 05940313 (Nov. 23, 1994).
Complainant's application reflects that she: (a) was a GS-12 Supervisory CBP Agriculture Specialist; (b) had approximately six years of work experience with the Agency; and (c) had approximately 14 years of supervisory experience - about six of which were with the Agency. The Selectee's application reflects that he: (a) was a GS-12 Supervisory CBP Officer; (b) had approximately six years of work experience with the Agency; and (c) had approximately two years of supervisory experience - all of which were with the Agency. Although Complainant had more years of supervisory experience than the Selectee, the record reflects that the Selectee had more experience with anti-terrorism and tactical operations as a Supervisory CBP Officer and a CBP Officer than Complainant had as a CBP Supervisory Agricultural Specialist. Based on the above, we find that Complainant failed to show that her qualifications are "plainly superior." Absent a showing that race or sex entered into the decision making process, we will not substitute our judgment for that of a selecting official.
Harassment - Claims 1-4
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994) (Harris Guidance).
Upon review of the record, we find that Complainant failed to establish a claim of harassment. Regarding claims 1, 2, and 4, we find, under the standards set forth in Harris, that Complainant's claim of hostile work environment must fail. See Harris Guidance. A finding of hostile work environment is precluded by our determination that Complainant failed to establish that the Agency's actions in claims 1, 2, and 4 were motivated by race or sex. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Regarding claim 3, we find that, even if true, it is not sufficiently severe or pervasive to constitute a hostile work environment. Based on Complainant's affidavit, we find that her allegation of harassment concerning the office relocation consists of the following unwelcome conduct: in January 2009, after she had moved to the GM&O building, management asked her to move her three boxes from the Royal Street building's storage room and to return two chairs to the Royal Street building. We find that the unwelcome conduct alleged in claim 3 did not alter the conditions of Complainant's employment and create an abusive working environment. While the record suggests that Complainant was upset about how S1 and S2 handled her move with respect to the boxes and the chairs, we note that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Based on Complainant's affidavit, we find that the unwelcome conduct is not sufficiently severe or pervasive to render the work environment hostile.
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.
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
_____11/9/12_____________
Date
1 On appeal, the Agency argued that Complainant's appeal was untimely filed.
29 C.F.R. � 1614.402(a) provides that a complainant's appeal must be filed within 30 days of receipt of the dismissal, final action, or decision. Here, the record contains no evidence as to when Complainant received the final order. Accordingly, in the absence of such evidence, the Commission finds that Complainant's appeal was timely filed.
2 On August 29, 2008, Complainant requested reconsideration of OHRM's denial. As of March 26, 2010, there had been no decision on Complainant's request.
3 For purposes of clarity, we have rephrased and renumbered the claims.
4 Complainant filed her notice of appeal on December 20, 2010. Complainant filed a statement in support of her appeal on January 24, 2012. 29 C.F.R. � 1614.403(d) provides that any statement or brief on behalf of a complainant must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. Accordingly, the Commission declines to consider Complainant's January 24, 2012 statement, as it was untimely filed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111300