01a60918_r
08-09-2006
Caroline Anderson, Complainant, v. Robert J. Battista, Chairman, National Labor Relations Board, Agency.
Caroline Anderson v. National Labor Relations Board
01A60918
August 9, 2006
.
Caroline Anderson,
Complainant,
v.
Robert J. Battista,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 01A60918
Agency No. SF-05-04
Hearing No. 370-05-00462X
DECISION
Complainant initiated contact with an EEO Counselor on September 23,
2004. Complainant filed a formal EEO complaint in which she claimed
that the agency discriminated against her on the bases of her race
(African-American), color (black) and in reprisal for her previous EEO
activity under Title VII when she was not provided with promotional
opportunities, including training and an opportunity to serve as backup;
and that her specific requests for job assignments and training in July,
September and December of 2004 were denied.
The record reveals that complainant, a Group Secretary, GS-0326-05/10, has
been employed in Region 20 since she was hired in May 2000. The complaint
was accepted for investigation. Subsequent to the completion of the
agency investigation, the agency notified complainant of her right to
request either a hearing and decision by an EEOC Administrative Judge
(AJ) or an immediate final action by the agency. Complainant requested
a hearing before an EEOC AJ.
By decision issued on September 1, 2005, the AJ issued a Decision Without
a Hearing finding that no discrimination occurred. The AJ concluded
that complainant did not suffer a tangible adverse employment action; or,
if she did that she was not treated differently than similarly situated
employees regardless of the protected status with respect to promotional
opportunities, including training and job assignments. The AJ also
dismissed the portions of the complaint concerning the claims arising
in July and September 2004, pursuant to 29 C.F.R. �1614.107(a)(2) on the
grounds that complainant failed to initiate contact with an EEO Counselor
in a timely manner. The AJ also found that complainant is asserting
claims identical to claims pending on appeal before the Commission and
he dismissed these claims pursuant to 29 C.F.R. �1614.107(a)(1).
The agency issued a final action dated October 14, 2005, wherein it
adopted the AJ's decision in its entirety.
On appeal, complainant contends that she does not have the flexibility
that other support staff have for purposes of informal cross training
for key tasks, which has led to tangible benefits for her coworkers in
the form of promotions and compensation and/or overtime. Complainant
maintains that since processing functions in her area of operations are
continuous, she has been at a disadvantage when it comes to taking full
advantage of the training opportunities to serve as a backup for key
desks in the same manner as other support staff.
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, 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.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases).
For complainant to prevail, she must first 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
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 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
With regard to each claim of discrimination, we shall address the
merits of those claims despite the fact that they were also previously
adjudicated on procedural grounds. We note, however, that the dismissal
of the complaint for stating the same claims as pending on appeal,
refers to complainant's breach of settlement claims pending in EEOC
Appeal No. 01A51943. The Commission finds that such a dismissal is
inappropriate because an individual may raise a claim of breach and a
claim of discrimination regarding the same incident when that claim could
conceivably constitute both discrimination and a breach as is possible
in the instant matter.
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of discrimination on the bases of
race, color and reprisal. Next, we shall consider whether the agency
articulated a legitimate, nondiscriminatory reason for its actions.
According to complainant's supervisor, she responded to complainant's July
16, 2004 request for training as the Secretary to the Assistant Regional
Director by telling complainant and the Secretary to the Assistant
Regional Director to work out a convenient training schedule together to
begin the following week. The Supervisor stated that she learned later
from the Secretary that complainant had informed her that she was too
busy with her docket duties to schedule training. The Supervisor further
stated that complainant knew to direct any conflicts with work assignments
to either her or the Assistant Office Manager and that docket coverage
would not have been a problem since several employees were trained to
back up docket duties. The supervisor noted that complainant had also
stated on July 16, 2004, that she was interested in receiving training
for the Secretary to the Regional Attorney position. According to the
supervisor, a training schedule was established, but the Secretary to
the Regional Attorney informed her that complainant only attended the
first training session.
Complainant's supervisor stated that she did not respond to complainant's
request offering assistance with the Board Agents because she considered
it only as a general offer of assistance and because complainant had
always maintained that she had too much work to do in the Docket section.
According to the supervisor, it has been a longstanding practice in Region
20, predating complainant's employment, that the employee assigned
to Docket not be assigned a team of Board Agents. The supervisor
stated that she considered complainant's request for training in the
Election Unit as a query about posting the Election Assistant position.
According to the supervisor, complainant had been trained for Election
Unit duties, but she could not recall when. We find that the agency
articulated legitimate, nondiscriminatory reasons for its handling of
complainant's training requests.
We find that complainant has failed to refute the agency's stated
reasons for its position on her training requests. Complainant has
indicated that the demands of her docket duties do not afford her
as much flexibility as some of her coworkers in obtaining training.
However, the fact that complainant's docket responsibilities require
almost continuous attention on her part and at times may place her at a
disadvantage in procuring training does not establish that discrimination
on the alleged bases occurred in the relevant incidents. We find that
complainant has not shown, by a preponderance of the evidence, that the
agency's stated reasons for its handling of her training requests were
pretext intended to mask discriminatory intent.
We AFFIRM the agency's final action finding no discrimination on the
bases of race, color, and reprisal.
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
August 9, 2006
__________________
Date