0120110043
02-14-2012
Terry Perlmutter, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Administration for Children and Familes), Agency.
Terry Perlmutter,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Administration for Children and Familes),
Agency.
Appeal No. 0120110043
Hearing No. 541-2008-00310X
Agency Nos. HHS-ACF-0005-2008 and HHS-ACF-0058-2008
DECISION
On September 16, 2010, Complainant filed an appeal from the Agency’s
August 13, 2010, final order concerning her 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. 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Program Specialist, GS-13, at the Agency’s Temporary
Assistance for Needy Families facility in Denver, Colorado. The record
indicated that the Former Program Manager retired on September 28, 2007.
She recommended the Selectee (African-American, 32 years old) to be
appointed the Acting Program Manager. On October 4, 2007, the Director
who is based in Washington, DC, appointed the Selectee noncompetitively
to the Acting Program Manager position based on the Former Program
Manager’s recommendation.
Believing that she had been subjected to discrimination, on October 10,
2007, Complainant contacted an EEO Counselor. When the matter could
not be resolved informally, on February 28, 2008, Complainant filed an
EEO complaint, namely Agency No. HHS-ACF-0005-2008. In the complaint,
Complainant alleged that the Agency discriminated against her on the
bases of race (Caucasian), age (57), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967 when, (1) on October 4, 2007,
Complainant was not selected for the Acting Program Manager detail.
This complaint was accepted for an investigation. 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.
During this time, the record showed that on February 11, 2008, the Agency
posted a vacancy for the Program Manager position. Complainant and the
Selectee applied for the position. The Director conducted interviews
telephonically and obtained references for the candidates. The Director
selected the Selectee for the Program Manager position effective March
29, 2008.
On March 31, 2008, Complainant contacted the EEO Counselor regarding the
non-selection. When the matter was not resolved informally, Complainant
filed a second EEO complaint, namely Agency No. HHS-ACF-0058-2008, on July
14, 2008. In this complaint, Complainant alleged that she was subjected
to discrimination on the bases of race, age, and reprisal when, on March
24, 2008, Complainant was not selected for the Program Manager position.
The Commission notes that the Agency dismissed this complaint in a
final decision dated July 15, 2008. Complainant appealed the decision
to the Commission. In EEOC Appeal No. 0120083393, the Commission
reversed the Agency’s dismissal and remanded the matter for further
processing. Perlmutter v. Dep’t of Health and Human Serv., EEOC
Appeal No. 0120083393 (June 18, 2009). The Commission also noted
that Agency No. HHS-ACF-0005-2008 was pending a hearing before an EEOC
Administrative Judge (AJ) and remanded Agency No. HHS-ACF-0058-2008 to
the AJ for consolidation of the matters. The matters were consolidated
by the AJ. The Agency was provided with an opportunity to conduct an
investigation into the complaint raised as Agency No. HHS-ACF-0058-2008.
On March 22, 2010, the Agency moved for a decision in its favor without
a hearing. Complainant responded to the Agency’s request on April
14, 2010. Complainant asserted that the Director was aware of her age,
race and prior EEO activity when the Selectee was named the Acting Program
Manager and, subsequently, selected for the Program Manager position.
Complainant also claimed that she was far superior to the Selectee.
Finally, Complainant asserted without evidence that the Agency had
an “age-conscious” mentality and had unwritten policies providing
preferences to minorities.
Over Complainant's objections, the AJ assigned to the case granted
the Agency’s motion for a decision without a hearing and issued a
decision without a hearing on July 29, 2010. As an initial matter,
the AJ determined that there were no material facts in dispute. The AJ
found that Complainant failed to establish her prima facie case of
discrimination as to the non-selections in the detail and permanent
Program Manager position. The AJ then held that the Director provided
legitimate, nondiscriminatory reasons for the actions. As to the
detail position, the Director averred that the Former Program Manager
recommended the Selectee to the detail position upon her retirement.
As to the permanent Program Manager position, the Director stated that
the Selectee had a positive interview and good references. The AJ then
turned to Complainant to establish that the Agency’s actions were
pretext for discrimination. The AJ found that Complainant failed to
show that the Selectee was chosen based on a discriminatory animus based
on her race, age, and/or protected activity. As such, the AJ concluded
that Complainant failed to show that she was subjected 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. This appeal followed.
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.
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail,
he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the Agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether Complainant
has shown by a preponderance of the evidence that the Agency’s actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we find that the Director provided legitimate, nondiscriminatory
reasons for her decision. As to the detail position, the Director
indicated that it was common practice for a departing Program Manager to
appoint a subordinate employee into an Acting Program Manager position.
As such, the Director relied upon the recommendation of the Former
Program Manager to name the Selectee for the detail to the Program
Manager position. As to the Program Manager position, the Director
indicated that she conducted interviews and spoke to the candidates’
references. The Director determined that the Selectee had the most
well rounded background, field experience and work history. She also
noted that the Selectee had a positive working relationship in the
office and her recommendations were stellar including one from the
Director (Denver Director) in Denver. The Director pointed out that
the Denver Director asserted that he was more inclined to work with the
Selectee over Complainant. The Denver Director was not the only Agency
official who indicated a preference for the Selectee over Complainant.
Based on the information gathered from the Director, she determined
that the Selectee would be the best person for the Program Manager
position. As such, we find that the Agency has provided legitimate,
nondiscriminatory reasons for its actions. Complainant must now show
that the Agency’s were pretext for discrimination.
In response, Complainant argued without specific evidence that the
Agency is “age-conscious” and has a preference for promoting minority
employees. We find that Complainant’s bald assertions are insufficient
to show that the Agency’s reasons for the selections were pretext.
As such, we conclude that Complainant failed to show that the Agency’s
actions constituted discrimination based on age, race and/or reprisal.
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 implementing the AJ’s decision.
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
February 14, 2012
__________________
Date
2
0120110043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110043