U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Almeda B.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120142432 Hearing No. 430-2011-00129X Agency No. ARBRAGG11DEC05108 DECISION On May 14, 2014, Complainant filed an appeal from the Agency's April 15, 2014, 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 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Training Instructor at the Agency's Directorate of Special Operations Education facility in Fort Bragg, North Carolina. On December 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (black), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On or about November 10, 2011, Complainant was removed from her position at the Agency. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's August 8, 2013, motion for a decision without a hearing and issued a decision without a hearing on April 1, 2014. Specifically, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action in the termination notice which noted that Complainant was being terminated for unacceptable conduct and an inability to get along with others, including Complainant's alleged "failure to follow instructions, confrontational demeanor and abrasive attitude towards management and staff." The AJ further noted that Complainant has been counseled for numerous incidents where she "exhibited conduct that [management officials] found to be unprofessional and unacceptable." The AJ found that Complainant disagreed with Management's version of events for each incident but that Complainant provided "no evidence that [her] race, age, reprisal and/or any other prohibited factor" played a role in her termination. 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. 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 note that to survive a motion for summary judgment, Complainant has to do more than simply allege a basis and make unsupported assertions. Instead, Complainant has to establish that there was a triable issue of fact that would lead a reasonable fact finder to find discrimination. Other than Complainant's beliefs and assertions, she has failed to establish that it was unlawful discrimination that led the Agency to engage in the challenged conduct. Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. The Agency articulated a legitimate nondiscriminatory reason for its action in its dismissal notice which states: The reason for this discharge is your unacceptable conduct and inability to get along with [Agency] leadership and staff. I find your level of conduct as an instructor unacceptable and not in keeping with the standards of the [Agency], which has been demonstrated by your failure to follow instructions, confrontational demeanor and abrasive attitude towards management and staff that is contradictory to your position. Report of Investigation (ROI) Tab 4B. The dismissal notice included a number of Memos For [the] Record (MFR) that were issued to Complainant during the course of her employment, detailing various incidents of behavior deemed unacceptable by management: 1. December 23, 2010, Failure to Follow Directions: S alleged that Complainant lied to her Team Leader/Acting Supervisor (TL: Caucasian, born in 1966) so as to avoid having to perform quality checks; 2. December 29, 2010, Misrepresentation: Complainant was counseled for ignoring management's instructions when she continually introducing herself as an "Academic Advisor", although she was hired as a Foreign Language Training Instructor; 3. February 18, 2011, Misconduct: TL alleged that Complainant had become loud and aggressive towards her during a disagreement; 4. March 1, 2011, AWOL: Complainant failed to report to work without prior approved leave; 5. May 9, 2011, Misconduct: Complainant refused to allow the Diagnostic Assessment Instructor to administer testing to the students in Complainant's class; 6. June 16, 2011, Discourtesy: Complainant became loud and disrespectful, toward TL during a conversation about Complainant's approved target language/curriculum; 7. August 5, 2011, Discourtesy: TL had to verbally counsel and advise Complainant to stop insulting the qualifications of her fellow instructors; 8. September 2, 2011, Failure to Follow Instructions: TL counseled Complainant about refusing to allow another instructor to administer the oral portion of the foreign language exam to her students. TL averred that Complainant blatantly refused her orders and began to rudely insult and attack TL's qualifications in the presence of students and other faculty members; and 9. October 25, 2011, Class Disruption: Complainant yelled, "why don't you shut up", at another instructor, (CW: race and age unknown) in front of students, during a presentation. See ROI, Tabs F2, a through i. The Agency having articulated legitimate nondiscriminatory reasons for its action, the burden returns to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reasons were a pretext to mask intentional discrimination or otherwise show that discrimination occurred. Following a review of the record we find that Complainant has failed to meet this burden. We note that with regard to the charge that Complainant lied to TL, Complainant denies the allegation. See ROI, Exhibit H, p. 15. With regard to the allegation she misrepresented her position by claiming to be an Academic Advisor rather than a Foreign Language Training Instructor, Complainant does not deny the charge but contends that her position description describes her as an "academic specialist" and that, in her view, "the role of the academic specialist is to advise" id., p. 21, and that "to me it is the same thing." Id. With regard to the allegations that Complainant became loud and aggressive towards TL on various occasions, Complainant either denied that the events occurred or averred that she did not know what the allegations referred to. See id., pp. 22, 30, 31, 32. With regard to the AWOL charge, Complainant averred that she called TL several times and left messages and that when she returned to work she filled out a leave slip. See id., pp. 24-5. With regard to the allegation Complainant refused to allow the Diagnostic Assessment Instructor (DAI) to administer testing to the students in Complainant's class, Complainant averred that contrary to the charge, she and the DAI arrived at an amicable arrangement to reschedule the testing because Complainant wanted to finish up a lesson she was conducting with her students. See id., pp. 28-9. Finally, with regard to the charge of class disruption, Complainant averred that it was another instructor who told her to shut up, not the other way around. See id., p. 34. Construing the record as a whole in a light most favorable to Complainant and considering arguments not specifically referenced herein, the preponderant evidence does not support a finding that Complainant was subjected to unlawful discrimination. Even assuming Complainant's version of events, Complainant has not shown that Agency officials harbored animus against her protected bases. 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, 509 U.S. at 511. Complainant has failed to do so. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the presence of a material fact at issue and has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the Agency's Final Order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 (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. Carlton M. Hadden, Director Office of Federal Operations December 11, 2015 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142432 2 0120142432