Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency. Appeal No. 0120121833 Hearing No. 570201100977X Agency No. LSM1003 DECISION On March 7, 2012, Complainant filed an appeal from the Agency's February 6, 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., 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). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that she was discriminated against as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-13, in the Finance and Administration Directorate of the Office of Surface Mining, Reclamation, and Enforcement (OSMRE) in Washington, D.C. On August 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American), sex, age (46), and in reprisal when on May 21,2010, she learned that she was not selected for the position of Deputy Ethics Counselor, GS-0301-14/14, advertised under Vacancy Announcement No. OSM-2010-0044. 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/Complainant's November 1, 2011, motion for a decision without a hearing and issued a decision without a hearing on January 20, 2012. The AJ found the following facts: Complainant acted in the Ethics Counselor capacity on a part-time basis within OSMRE from January 2007 to February 2008, and from November 2009 to May 2010. During the January 2007 to February 2008 time frame, Complainant mostly reviewed confidential disclosure forms during the "filing time" which lasted between 30-60 days. The AJ determined that Complainant spent approximately 60-70% of her time reviewing financial disclosure forms. Complainant also performed her assigned Human Resources (HR) duties during that time. The AJ found that during the November 2009 to May 2010 time period, Complainant spent approximately 25-30% of her time performing Ethics Counselor duties. The remaining portion of her work was spent doing HR-related work. Complainant received a Bachelor's Degree in Business Administration from Strayer University. Complainant achieved twelve quarter hours towards a Master's Degree in Business Administration from George Mason University. Complainant does not have a legal degree. On or about March 2010, OSMRE announced the Deputy Ethics Counselor position, under Vacancy Announcement No. OSM-2010-0044. Complainant applied for the position. Four candidates were selected for an interview: Complainant; the selectee (Selectee1), and two other candidates. The Assistant Director for Finance and Administration Division (AD) and Deputy Director (DD1) of the DOI Ethics Office, interviewed, scored and ranked the candidates. Complainant was recommended for the position. Sometime thereafter, the Director of OSMRE (Director) decided to move the position from the Finance and Administration Division to the Director's Office. The move was directed by the Agency's Secretary. The Ethic Counselor's duties were increased, making it a full time position. Because the selecting official for the position is the individual in whose office the position was to be located, the Deputy Director of OSMRE (DD2), and Director took over the selection process. DD2 was the designated selecting official for the position. Director and DD2 interviewed the Selectee and Complainant. Complainant was not selected for the position. The AJ found that the Selectee had a Bachelor's Degree in History and English from the University of Colorado and a law degree from the University of Colorado. The Selectee was licensed to practice law. The Selectee was also a U.S. Marine Corps veteran. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was not selected for the position by DD2 because she was not the most qualified applicant for the position in question. The Agency stated that the Selectee had been a full time ethics counselor while employed as an attorney with the U.S. Marine Corps for four years and that he demonstrated that he had more experience in the relevant subject matter for the position. The AJ found that Complainant had only 1.5 years of overall experience divided into two separate time periods. Moreover, according to the Agency, Complainant admitted that she only performed ethics work for 25-30% of the time she worked as an ethics counselor during the November 2009 to May 2010 time period. Thus, DD2 and the Director determined that the Selectee possessed more than twice the amount of experience Complainant had in the subject matter. Furthermore, the Agency indicates that another factor considered was the Selectee's superior educational achievement. The selectee attained a law degree and was licensed to practice law. The Director and DD2 also testified that Complainant's answers during her interview concerned them and described some of her answers as non-responsive. For example, DD2 found Complainant's answers demonstrated her lack of analytical experience. In contrast, the Selectee demonstrated a better understanding of ethical issues during the interview and showed that his legal work and experience were directly related to the position. The AJ found that Complainant failed to demonstrate that her qualifications were demonstrably superior to those of Selectee. Further the AJ found that Complainant failed to refute the Agency's assertion that the Selectee possessed the required skills and experience for the position. In order to demonstrate that the Agency's proffered reasons were a pretext for discrimination, Complainant argued that moving the position to the Director's Office was irregular and that the Agency's failure create a position description was illegal. However, the Agency stated that the reporting structure was changed based on the mandate issued by the Agency's Office of the Secretary, which required that the position be elevated in importance. The AJ found that Complainant failed to show how the transition or the Agency's failure to produce a position description violated the law. Further, the AJ noted that the Agency asserted that Complainant was not selected for the position, but only recommended as a viable candidate. She was recommended based on her familiarity with the division and the duties of the position. No Agency official stated that she had better qualifications that the Selectee. The AJ further stated that DD2, the selecting official, made three selections during the relevant two year time period. DD2 hired two black females over 40 years old, and one white male, also over 40 years old. The AJ also noted that Complainant failed to show that the selecting official was aware of her prior EEO activity at the time the selection for the position was made. 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. CONTENTIONS ON APPEAL On appeal, Complainant argues that summary judgment was inappropriate in this case because Complainant believed that DD2 knew of Complainant's past EEO activity even though she denied it and therefore there are genuine issues of material fact. Complainant further argues that she has demonstrated that she was discriminated against as alleged because she was qualified for the position, the position was illegally moved to another office, and a younger Caucasian male was selected for the position. The Agency requests that the Commission affirm the Agency's final order adopting the AJ's decision issued without a hearing finding no discrimination. ANALYSIS AND FINDINGS 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 Chapter 9, § VI.B. (November 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"). 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 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). Complainant argues on appeal that DD2's credibility is at issue because the record demonstrates that she should have known of Complainant's prior EEO activity. We find, however, that although this is a material issue of fact to the issue of whether Complainant can establish a prima facie case of retaliation in this case, the AJ assumed that she had done so but still found that Complainant failed to establish that she had been retaliated against. Because we adopt the same assumption in our analysis below, we find that the issue of whether DD2 knew of Complainant's prior EEO activity to not be a material issue of fact. Further, we find that the record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she responded to the motion, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. As such, the AJ appropriately issued a decision without a hearing in this case. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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, 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). At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra. Here, we find that assuming arguendo that Complainant established a prima facie case of race, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as stated above. Specifically, the Selectee was more qualified for the position because he had more experience doing similar type of work, had a law degree, and performed better in the interview. Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to show that the Agency's proffered reasons were a pretext for discrimination or reprisal. We find that Complainant failed to do so. Complainant failed to offer any evidence to show that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory or retaliatory reasons. Although Complainant argues that the Agency illegally moved the position at issue, she has offered no evidence that this is the case. Further, even though the position was moved, Complainant failed to demonstrate that this action was motivated by discriminatory animus. 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 adopting the AJ's decision finding that Complainant was not discriminated against as alleged. 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 __3/4/15________________ Date 2 0120121833 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 7 0120121833