01A15037
06-26-2002
Barbara Reed, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Barbara Reed v. Department of Agriculture
01A15037
June 26, 2002
.
Barbara Reed,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A15037
Agency No. 990894, 990447, 990705, 990704, 000688
Hearing No. 100-AO-7415X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that she was discriminated against on the bases of
her race (African-American) and in reprisal for EEO activity (protected
by unspecified statute) in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. when:
she received late or no responses to five requests made under the
Freedom of Information Act;
on November 20, 1997, her performance rating was delayed and her
performance bonus detached;
on August 14, 1998, she was denied a promotion;
from July 1998 through November 1998, her second-level supervisor
refused to communicate with her;
on May 4, 1998, her second-level supervisor interfered with the job
selection process;
on February 28, 1999, she was assigned to less favorable staff, her
duties were reduced, and her supervisor was changed on or about February
28, 1999;
on May 23, 1999, her supervisor allegedly made slanderous remarks
about her;
on March 4, 1999, a desk audit was not requested, she was denied
training, her performance rating was delayed, her performance rating
was reduced, she was not promoted, and her duties were reduced.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge. The Administrative Judge issued a decision
without a hearing, finding that there was no genuine issue of material
fact and that complainant failed to establish discrimination on either
of her proffered bases. The agency issued a final order adopting the
Administrative Judge's findings. It is from this final order that
complainant now appeals.
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). A fact is �material� if it has the potential to affect
the outcome of the case. 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.
Turning to the matter before us, complainant argues that the agency failed
to strictly adhere to internal procedures and time lines. Complainant
seeks enforcement of these procedures and time lines. However, we have
no authority to enforce these procedures. On appeal our concern is
whether the AJ correctly determined that there was no genuine issue of
material fact. Contrary to complainant's contentions, non-compliance
with agency procedures and time lines, alone, is immaterial where, as
here, complainant creates no suggestion that the agency's failure to
strictly adhere these procedures was based on a discriminatory motive.
Succinctly, the agency's failure to comply with procedures and time
frames, does not automatically establish intentional discrimination.
Weighing conflicting evidence about whether or not the agency strictly
complied with these internal procedures and time frames would not affect
the outcome of this complaint. We are not confronted with any evidence
that the agency departed from its own regulations in a manner which would
permit a reasonable person to draw any inference of discrimination.
Regarding complainant's additional claims of discrimination, we agree
with the conclusion of the Administrative Judge that complainant failed
to present any genuine issue of material fact.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 26, 2002
__________________
Date