01A23327_r
10-17-2002
Betty J. Lofton, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Betty J. Lofton v. Department of Justice
01A23327
October 17, 2002
.
Betty J. Lofton,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A23327
Agency No. B-98-2285
Hearing No. 100-A0-7124X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. In her complaint, complainant claimed she
was discriminated against on the bases of race, sex, religion, age,
and disability when her position was abolished and she was reassigned
to another office in the division for discriminatory reasons.<1>
The record reveals that during the relevant time, complainant was employed
as a Secretary, GS-7 in the agency's Criminal Division's Office of Policy
and Legislation (OPL), Legislative Unit. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on March 31, 1998.
On July 22, 1998, the agency issued a final decision on two claims
raised in the instant complaint (promotion denial and denial of copies
of position descriptions). Specifically, the agency determined that
complainant failed to initiate contact with an EEO Counselor in a timely
fashion with regard to both claims. There is no evidence reflecting
that complainant filed an appeal from the agency's July 22, 1998 final
decision.
The agency, however, accepted for investigation the claim that is the
subject of the instant appeal:
complainant's position was abolished and she was laterally reassigned
to another post.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). Subsequent to receipt of the complaint file,
the AJ issued an Acknowledgment Order on January 13, 2000. On February
8, 2000, the agency filed a motion for summary judgment in response to
this notice.
In its motion for summary judgment, the agency determined that complainant
has not made a prima facie case. Specifically, the agency determined
that complainant has met the first two elements of making a prima
facie case. However, the agency argued that complainant has not shown
that the transfer was an adverse employment action. The agency stated
that complainant's transfer was without impact on her pay, grade,
position description, or location; and that complainant provided no
evidence to support her contention that someone outside her protected
class was treated more favorably. Further, the agency argued that,
even if complainant did establish a prima facie case of discrimination,
the record failed to show that management's legitimate justification
for her transfer was pretext.
On March 22, 2002, the AJ issued a decision without a hearing finding no
discrimination. The AJ only addressed complainant's race discrimination
claim. In regard to complainant's race claim, the AJ concluded that
the agency proffered legitimate, nondiscriminatory reasons for its
decision to abolish complainant's position and laterally reassign her to
another position. Specifically, the AJ found that the record reflects
that in December 1997, the agency was required to conduct a staffing
review because of limited financial resources. The AJ found that the
review assessed that certain positions would have to be abolished,
complainant's position was selected for abolition and she was laterally
reassigned to another position. The AJ did not explain her failure to
address complainant's age discrimination claim.
The agency's final action implemented the AJ's decision.
On appeal, complainant through her attorney argues that the AJ erred
when she issued a summary judgment because she overlooked a number of
material facts in dispute. The attorney argues that the agency determined
that complainant's position was abolished in May 1998, but complainant
returned to it in September 1999, and questioned why she was reassigned
in the first place. The attorney further argues that complainant's
reassignment was discriminatory because it was intended to prevent her
from pressing a discrimination complaint over her non-promotion.
In response, the agency argues that complainant does not present
any reasons for overturning the AJ's finding of no discrimination.
The agency further argues that complainant's arguments on appeal are
not supported by facts. As to complainant's age discrimination claim,
the agency notes that the AJ failed to address this basis; however,
complainant does not raise this failure on appeal. Finally, the agency
requests that we affirm its final action implementing the AJ's decision.
The record contains a copy of Director of Legislation of the agency's
Office of Policy and Legislation, Criminal Division's affidavit dated
August 21, 1998. Therein, the Director stated that complainant could
no longer be employed in his office as a result of a review performed of
the entire division by a team appointed by the Acting Assistant Attorney
General for the Criminal Division. Specifically, the Director stated
that the review concluded that his office had too many secretaries and
only two attorneys while other offices had a more desperate need for
secretarial support.
The record also contains a copy of Acting Executive Officer's response to
the investigator's list of questions concerning complainant's complaint
dated January 8, 1999. Therein, the Acting Executive Officer stated that
in December 1997, due to budgetary constraints, the Acting Assistant
Attorney General, Criminal Division, established a team to conduct a
review of position allocations within the Division to determine how to
reallocate existing resources to meet the Division's demands. As a result
of the review, the team recommended that one of the clerical employees
in that office be reassigned to another office within the Division to
meet the critical need for clerical support and to balance the clerical
to attorney ratio. The Acting Executive Officer stated one of the two
positions in Legislation, complainant's position, was selected because
she was at the GS-7 grade level and the other secretary in that office
is a GS-8, who serves as the Director's secretary. Further, the Acting
Executive Officer stated that complainant's position was not abolished
and that the decision to reassign complainant's position was not related
to race and sex claims.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, we find that the grant of summary
judgment was appropriate, as no genuine dispute of material fact exits.
We find that the agency properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws in its motion
for summary judgment. Further, construing the evidence to be more
favorable to the complainant, we note that complainant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected class. The agency final action
implementing the AJ's finding of no discrimination is therefore AFFIRMED.
Finally, we note that complainant on appeal did not address the
AJ's determination not to address the basis of age in her decision.
Complainant's brief totally focuses on the finding of no discrimination
on the basis of race. We note, for example, that complainant's attorney
asserts that the �real reason for [complainant] being forced to wander the
agency is race discrimination.� In response, the agency argues that the
AJ's decision does not refer to age discrimination �apparently because
no arguments or evidence were presented� by complainant on this matter;
and noted that virtually all of the individuals involved in the case
are within complainant's age range. We find that based on the present
record, it appears that complainant dropped the basis of age from her
complaint and we will not address it further herein.
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
October 17, 2002
__________________
Date
1The record contains a copy of complainant's
email dated May 7, 1998. to an agency official. Therein, complainant
requested that the religion basis be withdrawn from her complaint. In her
response dated April 22, 1998, to the EEO Counselor, complainant stated
that her disability was not a factor in the abolition of her position.
In her affidavit dated August 1, 1998, complainant stated that her sex
was not a factor in the abolition of her position.