Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120140796
Hearing No. 570-2012-00434X
Agency No. DON-11-00178-1808
DECISION
On December 30, 2014, Complainant timely filed an appeal from the Agency's November 22, 2013, 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. 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 whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that Complainant failed to prove that she was subjected to unlawful discrimination.
BACKGROUND
At the time of the events in this complaint, Complainant worked as an Engineer in the Agency's Information Management Division at the Naval Surface Warfare Center Dahlgren Division (NSWCDD) in Dahlgren, Virginia. Complainant was hired by the Agency on March 15, 2010, and was subject to a one-year probationary period.
Complainant's position is characterized as a DoD (Department of Defense) 8570 position. DoD 8570 positions are technical (IAT) or managerial (IAM) and further subdivided into levels I through III. Because Complainant's position required unsupervised access to Agency IT (information technology) assets, DoD directives classified it as requiring IA Technical Level II certification. Level II certification required employees to acquire basic Information Assurance (IA) certification by obtaining a passing score on the Global Information Assurance Certification (GIA) Security Essential Certification (GSEC) examination or another acceptable examination, and by obtaining a passing score on the Windows Operating System examination to obtain Computing Environment (CE) certification.
On or about April 30, 2010, Complainant signed a document entitled "Yearly Objectives and Expectations" or YOEs. The YOEs notified Complainant that she was assigned a performance objective to become familiar with and conversant about the NSWCDD Information Assurance Program "as it relates to Department of Defense and Department of the Navy Information Assurance goals and objectives." The YOEs also assigned Complainant a performance objective to acquire a basic to intermediate understanding of the Host Based Security Suite (HBSS) that will enable her to provide technical leadership and guidance in the implementation of HBSS within NSWCDD at Dahlgren as it relates to HBSS architecture, identifying prioritized areas for incorporation, developing an implementation schedule, and documenting development and implementation lessons learned.
Complainant twice took the GSEC examination, on July 6 and on August 20, 2010, but did not pass the examination. On or about September 9, 2010, Complainant advised S1 that she needed more than the allotted five hours to take the GSEC examination. Complainant was granted an additional hour to take the examination after S1 asked the GSEC test administrator to grant Complainant's request for more time.
Complainant took the GSEC examination on September 12, September 20, September 23, October 2, and October 25, 2010, but did not pass the examination on any of these attempts. Complainant passed the GSEC examination on January 24, 2011. However, Complainant did not pass the CE examination during her employment with the Agency. On February 11, 2011, the Agency terminated Complainant from her position.
On May 13, 2010, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of national origin (Vietnamese) and sex (female) when the Agency terminated her employment during her probationary period. Complainant further alleged that S1 advised her to apply for a greeter position at Wal-Mart when she presented her with the option of submitting her resignation.
The Investigation
In an investigative statement, Complainant stated that she believed that she was subjected to discrimination because the job announcement and offer letter for the position did not reflect that IA certification was needed to retain the position. Complainant further stated that she worked very hard and did everything S1 asked, and S1 never told her anything about obtaining IA certification. Complainant stated that she did not know she had only six months to obtain Defense Acquisition Workforce Improvement Act (DAWIA) certification and thought she had 24 months to obtain the certification.
Complainant further stated that there were no complaints about her work performance while she worked with the Agency. She stated that, on January 28, 2011, S1 told her that he would give her two weeks to think about resigning or he would terminate Complainant. Complainant stated that S1 also stated that she should go apply as a greeter at Wal-Mart. Complainant stated that she believed that she was discriminated against because she is Vietnamese and does not speak English fluently. She further stated that she believed that management subjected her to sex discrimination because a male employee (C1) was not pressured to take the GSEC certification examination.
Complainant stated that a male probationary employee (C3) was allowed to take the easier Security examination, but she was not allowed to take that examination. Complainant stated that C2 had an Information Technology (IT) background, whereas she did not have an IT background and also should have been allowed to take the easier examination.
S1 stated that Complainant's position requires Windows domain administrator privileges to install and configure HBSS client software on computers that are joined to the domain and to modify configurations on the server. S1 stated that DoD Directive 8570.01-M mandates that Information Assurance Level II (IAT-II) certification must be obtained in order to access this level of unsupervised access. S1 stated that when he interviewed Complainant for the position, he told her that she would be responsible for implementing and managing for NSWCDD, and Complainant agreed that she could do the job. S1 further stated that he believed that he discussed Information Assurance Workforce (IAW) certification requirements during the interview.
S1 stated that, soon after Complainant reported for work, he discussed with Complainant the training opportunities that were available for her to prepare for the first part of the IAT-II certification. He further stated that there were at least two certifications available (CompTIA Security+ and GSEC) that were acceptable. S1 stated that he told Complainant that, although some people considered GSEC more challenging, it was generally believed to provide more comprehensive knowledge, and therefore, NSWCDD offered GSEC training. S1 stated that he informed Complainant that either certification would meet the IA portion of the overall certification she needed to achieve, but Complainant elected to participate in the onsite GSEC course scheduled for April 2010. S1 stated that Complainant chose to attempt Security+ certification after she failed the GSEC examination.
S1 stated that Complainant was terminated because she did not have basic understanding of IT systems, which he observed when Complainant failed to successfully install an upgrade of Flash Player computer software. S1 further stated that there were a number of instances wherein Complainant required technical assistance from other personnel for duties assigned to her that she should have able to perform on her own.
Complainant's second level supervisor (S2) stated that he consulted with S1 and agreed with Complainant's termination. S2 stated that Complainant was terminated because she was unable to technically fulfill the duties of an Engineer. For example, S2 stated that Complainant did not demonstrate an understanding of internet protocols and related topics, as required. S2 further stated that Complainant displayed an insufficient ability to operate and troubleshoot computers and peripherals and was unable to provide the technical analysis that was required to be the HBSS Administrator,
S2 stated that he thought it was an error that the certification requirement was not written into the position description of Complainant's position; however, Complainant was aware of the requirements because they were in DoD 8570, and she attended his biweekly meetings that routinely discussed certification requirements. However, S2 stated that Complainant was not terminated solely because she lacked certification. S2 stated that Complainant's inability to do the work during her probationary period was the primary reason for her termination. S2 stated that, in late November/early December 2010, it became obvious to management that Complainant could not perform her assigned technical duties. He stated that Complainant's struggles with the certification process were indicative of the difficulty she had with the technical duties she was assigned.
A Computer Engineer stated that Complainant put forth a great deal of effort in trying to learn the HBSS Administrator duties but lacked the IT knowledge/background necessary to take over the primary HBSS Administrator role. The Computer Engineer further stated that Complainant's communications with system administrators often lacked clear instructions or actionable requests and required rework or requests for clarification by him. He stated that he routinely observed Complainant struggle with performing basic operating system administration fundamental activities, including her inability to keep system patches updated with her Linux and Windows computer systems.
The Administrative Technical Specialist (ATS) stated that at the time Complainant applied, NSWCDD utilized open continuous vacancy announcements to fill recurring scientist and engineer positions under the Science and Technology Reinvention Laboratory Personnel Demonstration Project (DEMO). The ATS further stated that it was not the current procedure of the Agency to include IA certification requirements in offer letters or vacancy announcements.
AJ's Decision
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 AJ. Complainant timely requested a hearing. On October 31, 2012, the Agency filed a motion for summary judgment, which Complainant opposed on November 20, 2012.
In a decision dated September 25, 2013, the AJ granted the Agency's motion and issued summary judgment, in favor of the Agency. Specifically, the AJ concluded that the record did not disclose any evidence inconsistent with the Agency's non-discriminatory explanation for its actions. The AJ noted that the record was replete with evidence that reflected that Complainant lacked the technical proficiency to carry out the basic responsibilities of her position. The AJ found that Complainant failed to provide any evidence from which it could be concluded that the Agency's explanations were pretext for unlawful discrimination. Regarding Complainant's claim that S1 stated that she should apply for a greeter position at Wal-Mart, the Agency dismissed this claim on the basis that it failed to state a claim. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision without hearing in favor of the Agency. Complainant also contends that the vacancy announcement for her position and the offer letter did not mention that she would have to pass certifications examinations to retain her position. Complainant further contends that the Agency's explanations for her termination are pretextual because there is no documentation that the Agency gave her notice that her performance was unsatisfactory before her termination. The Agency requests that we affirm its final order.
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, at Chap. 9, § VI.B. (Nov. 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 Chap. 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").
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 Defense, 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). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment
In order to prevail in a disparate treatment claim such as this case, 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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community 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 Center v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of analysis and without so finding, we assume that Complainant established a prima facie case of sex and national origin discrimination. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for terminating Complainant. Specifically, the Agency stated that it terminated Complainant because she was unable to fulfill the technical duties of her Engineer position and lacked basic understanding of IT systems and principles, as demonstrated by her inability to successfully install software and her failure to acquire proper certification.
Complainant maintains that the vacancy announcement for her position and the offer letter did not mention that she would have to pass certification examinations to retain her position. However, Agency directives mandated certification requirements for Complainant's position, and Complainant has not rebutted the Agency's contention that she was provided notice of the certification requirements well before the certification deadline.
Complainant further maintains that three non-Vietnamese male co-workers (C1, C2, and C3) did not have CE certification and were not required to obtain it. The record reveals that C1 and C3 were contractors, whereas Complainant was an Agency employee. S1 stated that C2 was hired as a "wounded warrior" under a special hiring authority, and his job description placed his job outside IAW, which meant he initially did not have to obtain certification. The record reveals that C2 was an Electrical Engineer with different work duties than Complainant, and his position did not require him to obtain certification until 2011. As such, we do not find that C1, C2, and C3 were similarly situated to Complainant.
Complainant further contends that the Agency's explanations for her termination are pretextual because there is no documentation that reflects that her performance was unsatisfactory. Although a lack of documentation of unsatisfactory performance may constitute evidence of pretext in some circumstances, we do not find that it does in this case. In so finding, we note that S1 was the selecting official who interviewed and selected Complainant for the position. Further, S1 successfully advocated for Complainant to receive extra time to take the GSEC examination. The evidence reflects that S1 attempted to assist Complainant, and there is simply no evidence that S1 harbored animus against Complainant because of her sex or national origin.
Finally, it is significant that Complainant was a probationary employee. We have long held that where the complainant is a probationary employee, she is subject to termination at the discretion of an agency so long as these decisions are not based on a discriminatory consideration. Cleveland v. USDA, EEOC Appeal No. 0120073335 (Oct.12, 2007); Tortorelli v. Dep't of the Air Force, EEOC Request No. 05920285 (May 7, 1992). We find that Complainant failed to show that the Agency's legitimate, non-discriminatory explanations for its actions are pretext for unlawful discrimination. To the extent that Complainant contends that S1's comment about applying for a Wal-Mart greeter constituted harassment, we do not find that this single incident was sufficiently severe or pervasive to create a hostile work environment. Consequently, we find that the AJ properly found that Complainant failed to prove that the Agency subjected her to sex or national origin discrimination.
CONCLUSION
Accordingly, 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 for the reasons set forth in this 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
June 20, 2014
Date
2
0120140796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140796