Susanna Montante, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency. Appeal No. 0120110240 Hearing No. 480-2009-00593X Agency No. 2007-21390-FAA-06 DECISION Complainant filed an appeal from the Agency’s September 24, 2010 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency’s Federal Aviation Administration Western Pacific facility in Lawndale, California. On July 20, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Mexican), sex (female), age (62), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: Complainant was not selected on June 5, 2007, for the Personnel Management Specialist position FV-201-1, announced in Vacancy Announcement AWP-AHR-07-DDK-04826R. 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 requested a hearing. On April 2, 2010, the Agency submitted its Motion for a Decision without a Hearing. Record on Appeal (ROA) at 1380. Complainant responded to the Agency’s Motion, requesting that the Agency’s Motion be denied. ROA at 1392. On April 28, 2009, the AJ issued her Order Granting In Part And Denying In Part Agency's Motion For Decision Without Hearing, in which the AJ granted the Agency’s request for a decision without a hearing on all bases alleged in Complainant’s complaint with the exception of reprisal. ROA at 730. The AJ held a hearing on October 20, 21, and 22, 2009, with respect to Complainant’s claim that she had not been selected for the identified position based on the sole basis of her prior protected activity. Thereafter, on May 26, 2010, the AJ issued her Decision On Liability; Scheduling Order On Relief And Bill Of Costs Awarded To Complainant As Prevailing Party (AJ Decision #1; Record on Appeal (ROA) at 135. In her initial Decision (AJ Decision #1), the AJ found that the Agency had discriminated against Complainant based on her prior EEO activity and that Complainant had established that the Agency had a mixed motive for not selecting her for the identified position. Specifically, the AJ found that the selecting official (S1), Complainant’s former supervisor, did not select Complainant in part because of Complainant’s prior conduct which conduct S1 described as confrontational, contentious, and disrespectful to management. AJ Decision #1 at 16, 17; ROA at 150. S1 also described an incident where Complainant accused the Agency of being discriminatory toward Hispanics in the presence of a high level Agency official. Id. That accusation the AJ found to be protected activity and a motivating factor in S1’s decision not to select Complainant. The AJ found that reprisal together with Complainant’s refusal to be cooperative with co-workers and with management led to her non-selection. AJ Decision #1 at 13; ROA at 147. The AJ found that the Agency would have taken the same action (failed to select Complainant) even if S1 had not retaliated against Complainant for her prior protected activity. Having found discrimination based upon a mixed motive, the AJ ordered Complainant to submit a bill of costs detailing the expenses she incurred in connection with the prosecution of her complaint and invited both parties to submit briefs with respect to declaratory and injunctive relief to be awarded to Complainant. Id. at 19; ROA at 153. After receiving submissions from both parties, the AJ issued her August 11, 2010 Order Entering Judgment and August 9, 2010 Final Decision (AJ Decision #2). ROA at 172. In her Decision regarding relief, the AJ denied Complainant’s request for paralegal fees, finding that Complainant was not an attorney and was not represented by an attorney. AJ Decision #2 at (unnumbered) 3; ROA at 182. The AJ did find that Complainant had submitted documentation for compensable expenses in the amount of $731.29. The AJ further ordered the Agency to post a notice, to provide appropriate training to S1 and to consider appropriate discipline for S1. The Agency subsequently issued a final order adopting and fully implementing the AJ’s Decisions. Agency’s Final Decision (Ag Decision), September 24, 2010 at 1; ROA at 18. CONTENTIONS ON APPEAL Complainant challenges the AJ’s mixed motive analysis and states that the AJ improperly limited the relief available to her by crediting S1’s articulated reasons for failing to select her for the Personnel Management Specialist position. Complainant’s Brief In Support Of Her Appeal Of The Agency's Final Decision On Remedy (CP Brief), November 5, 2010 at 1; ROA at 4. On appeal, the Agency points out that the AJ found S1’s testimony credible with regard to his legitimate, non-discriminatory reasons for his failure to select Complainant, which was founded upon Complainant’s demonstrated prior performance and conduct during her previous Agency employment. The Agency states that the record contains ample evidence of Complainant’s employment history at the Agency both in the form of hearing testimony and S1’s affidavit submitted well before the hearing. Agency’s Brief in Opposition to Appellant’s Appeal, January 12, 2011, at 6.1 ANALYSIS AND FINDINGS As a preliminary matter, we observe that Complainant does not challenge the AJ’s decision without a hearing regarding her complaint based on sex (female) or age. We therefore confine our decision to consideration of Complainant’s complaint insofar as it is based upon reprisal and national origin, and to consideration of the remedies awarded by the AJ in light of the AJ’s application of a “mixed motive” theory of discrimination. Reprisal Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In the instant case, we find no reason to disturb the AJ’s Decision regarding the remedies awarded Complainant, nor her finding of discrimination based on reprisal. Complainant contends that the AJ improperly considered the selection process to have been the product of a mixed motive. Complainant argues that S1’s reasons for the selection which were found by the AJ to be legitimate were a pretext, and thus she should be entitled to placement in the position for which she applied and should have been selected absent reprisal and national origin discrimination. CP Brief, at 1, 2. We find, as did the AJ, that the evidence supports S1’s evaluation of Complainant’s “people skills” as in need of improvement and that Complainant did not deny that she did not enjoy a cooperative working relationship with her co-workers and customers prior to her retirement in 2004. Rather, Complainant openly confronted Agency officials in a manner some co-workers found offensive, when she believed the Agency was promoting an illegal means of recruitment. See Hearing Transcript (Hr’g Tr), October 20, 2010, at 237 et seq., ROA at 577 et seq.; Hr’g Tr at 274 et seq. Complainant also voiced her disagreements using profanity in conversations with her supervisors. Complainant would acknowledge and defend her conduct, however inappropriate, resisting S1’s efforts to counsel her performance and conduct. See, e.g. Reports of Contact, (various dates), Report of Investigation, Exhibit F7b, ROA at 1710, et seq. We find the AJ properly found that S1 failed to select Complainant for the identified position based on her past protected activity and also based upon her prior conduct, unrelated to her protected activity, which S1 believed reflected poor interpersonal skills. See, e.g., Hr’g Tr at 447, et seq. In cases such as this, where there is evidence that discrimination was one of multiple motivating factors for an employment action, i.e., in which the agency acted on the bases of both lawful and unlawful reasons, are known as “mixed motive” cases. See Enforcement Guidance. Prior to the Civil Rights Act of 1991 (CRA), an employer could avoid liability in mixed motive cases if it could show that it would have made the same decision even absent the unlawful factor. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, the CRA effectively overruled the part of Price Waterhouse that allowed an employer to avoid liability in this way. 42 U.S.C. § 2000e- 2(m); EEOC Compliance Manual, at 8-II(E)(1). A complainant is not required to present direct evidence of discrimination to prove discrimination was a motivating factor for the employment practices at issue in mixed motive cases. Desert Palace. Inc. v. Costa, 539 U.S. 90, 101 (2003). Once a complainant demonstrates that discrimination was a motivating factor in the agency's action, it is the agency's burden to demonstrate by clear and convincing evidence that it would have taken the same action even if it had not considered the discriminatory factor. If the agency is able to make this demonstration, the complainant is not entitled to personal relief, i.e., damages, reinstatement, hiring, promotion, back pay, but may be entitled to declaratory relief, injunctive relief, attorneys' fees or costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). Accordingly, in this case, we agree with the AJ that Complainant is not entitled to personal relief because the Agency would not have selected Complainant even if S1 had not considered Complainant’s prior protected activity. With respect to the relief awarded to Complainant, we find that Complainant does not challenge the specific remedies (costs, training, and posting order) awarded by the AJ. We therefore decline to reconsider the remedies set forth by the AJ in her decision and we shall order the Agency to implement the relief described therein as slightly modified. National Origin 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). We do not find any evidence to support Complainant’s claim that S1’s decision was motivated by Complainant’s national origin (Mexican) and we find that the AJ properly issued a decision without a hearing regarding the national origin discrimination claim. In her Decision, the AJ found no dispute that S1 was aware of Complainant’s national origin and that the selectee’s race/national origin was unknown. AJ’s April 28, 2009 Order Granting in Part Agency’s Motion for Decision without Hearing at 5. We concur with the AJ that even if Complainant had established a prima facie of national origin discrimination, that she has not shown that the Agency’s legitimate, non-discriminatory reasons for failing to select her were a pretext to mask national origin discrimination. Id. at 8. CONCLUSION We AFFIRM the Agency’s Final Order finding discrimination based on reprisal, and order the Agency to implement the AJ’s relief, as slightly modified herein. ORDER The Agency shall take the following remedial actions (if it has not already done so): 1. Within 60 days of the date this decision becomes final, the Agency shall pay to Complainant the sum of $731.29 in costs. 2. Within 180 days of the date this decision becomes final, the Agency shall provide a minimum of eight hours of EEO training to the Agency official identified herein as S1 with an emphasis on the protection against retaliation. 3. Within 60 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials including, but not limited to S1, identified in Complainant’s complaint as the selecting official. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employment, then the Agency shall furnish documentation of their departure date(s). Evidence showing compliance with this Order shall be sent to the Compliance Officer referenced herein. POSTING ORDER (G0610) The Agency is ordered to post at its Lawndale, California facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 November 9, 2011 __________________ Date 1 Complainant also argues on appeal that the Agency is providing negative employment references to prospective employers, thus thwarting her efforts to secure employment outside the Agency since she retired in 2004. Complainant states that this activity violates a settlement agreement she signed with the Agency previously. We note that neither breach of a settlement agreement nor her claim regarding references was a part of the claims of the instant complaint accepted for investigation and we decline to consider her arguments on appeal related to either claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120110240 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120110240