By Deryn Sumner

Although most decisions issued by the EEOC’s Office of Federal Operations affirming grants of summary judgment by administrative judges are worthy of no more than a simple skim, the recent decision of Juanita K. v. Department of Homeland Security, EEOC No. 0120143236 (October 21, 2016) caught my eye because, based on the limited information provided in the decision, I think the Commission got it wrong.

The facts, as presented by the EEOC in the decision, are as follows.  Ms K. worked as a Voluntary Agency Specialist for FEMA.  (After some Internet sleuthing, it appears a Voluntary Agency Specialist is the interface between FEMA and volunteer organizations after national disasters occur).  After the Agency did not reappoint her to her position, she filed an EEO complaint alleging race, age, and sex discrimination, and retaliation.  After the Agency completed an investigation and the complainant requested a hearing, the administrative judge granted summary judgment in the Agency’s favor.  The administrative judge found that there were no material facts in genuine dispute and the Agency had established legitimate, non-discriminatory reasons for its actions.  As we know, summary judgment is only appropriate when there are no material facts in genuine dispute and the factfinder should construe the facts in the non-moving party’s favor when considering these facts.

Ms K. appealed the final action adopting the grant of summary judgment.  And on reading the Commission’s decision, it seems like Ms K. had evidence of pretext.  Here’s what we know, directly from the Commission’s decision:

Here, according to the Agency, Complainant was not reappointed because Complainant exhibited conduct which was not “conducive” to the workplace, including communicating with coworkers in a tone that was “rude and demanding” and “threatening.” This is a legitimate, nondiscriminatory reason for the Agency’s action.

In an effort to identify a genuine issue of material fact, Complainant points out that when she asked why she had not been reappointed, her supervisor initially stated that “staffing needs” made reductions in force necessary, never mentioning any problem with Complainant’s conduct. As Complainant characterizes it, her supervisor’s explanation was “inconsistent with the rationale she latter supplied to allegedly support the non-reappointment.” The Agency acknowledges that its initial explanation for its action was false. It explains that the Agency official who gave this explanation was not candid about the true reasons for not reappointing Complainant because she wished to avoid a confrontation with Complainant. Complainant argues that the inconsistency between the Agency’s first explanation and what it now claims is the true reason for its action creates a genuine issue of material fact precluding summary judgment.

So the Agency admits that it initially gave the complainant a false reason for not reappointing her to the position and later gave her a different reason.  Sounds like pretext to me, and a fact that should at least get Ms K. to a hearing.  But the Commission disagreed, stating:

Complainant’s position is not well taken. The fact that the Agency initially gave a false explanation does not necessarily provide support for a finding of discriminatory animus. As the Supreme Court observed in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 148 (2000) “[i]f the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent” (internal citations omitted). Here, the only evidence as to motivation shows that the Agency gave a false explanation in an effort to avoid a confrontation with Complainant, whom Complainant’s colleagues regarded as rude, demanding and threatening. The inference of discrimination is nonexistent. No genuine issue of material fact requiring a hearing is presented.

Now again, I don’t know anything about this case beyond what is contained in the five-page decision from the Commission.  And I’m not saying that Ms K. can ultimately establish that the Agency did not reappoint her because of discrimination.  But based on what is in this decision, I do think this was a case where a hearing would be appropriate so the judge could make credibility findings, rather than simply dismiss the case on summary judgment.  The Commission appears to take at face value that Ms K. was in fact “rude, demanding and threatening” without requiring an actual showing.  I think the Commission got this one wrong.  Sumner@FELTG.com

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