0120061237
03-16-2007
Cecilia E. Woods, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Cecilia E. Woods,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200612371
Agency No. F-01-5585
Hearing No. 100-2002-07583X
DECISION
Complainant filed an appeal from the agency's final action dated November
4, 2005, finding no discrimination with regard to her complaint. In her
complaint, dated January 18, 2001, which was later amended, complainant,
a Supervisory Special Agent, GS-14, with the agency's Federal Bureau
of Investigation (FBI), alleged discrimination based on sex (female)
and in reprisal for prior EEO activity when:
1. In November of 2000, she was not selected for the Assistant Legal
Attache (ALAT) position in Santiago, Chile;
2. Her supervisor filed reckless and irresponsible charges against her
with the Office of Professional Responsibility (OPR) which initiated an
investigation that resulted in her suspension by letter dated February 9,
2001;
3. She was removed from her position as the ALAT in Panama;
4. The agency did not conduct a fair and thorough investigation regarding
her appeal of the OPR charges levied against her, and it did not have
sufficient evidence to support its findings;
5. On September 7, 2001, she was not selected for the Miami Liaison
Officer position in the FBI's Miami Division;
6. Since arriving in Panama in June of 1999, she has been subjected to
a hostile work environment by her supervisor when, among other incidents:
* her supervisor introduced her to staff and colleagues as his
"asistente;"
* the agency did not adequately address concerns she raised with the
agency's inspection team; and
* on or around December 6, 2000, she learned that the Legal Attache
canceled her previously approved annual leave for the impending holiday
season; and
7. On January 9, 2002, complainant learned that she would not be
recommended for a Unit Chief position.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 29, 2005, the AJ issued a decision without holding a hearing,
finding no discrimination and dismissing claim 1 due to untimely EEO
Counselor contact and a portion of claim 2 and all of claim 4 for
failure to state a claim. The agency's final action implemented the
AJ's decision.
Initially, upon review, the Commission finds that the agency properly
dismissed claim 1 due to untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2). The record indicates that complainant learned of
the alleged non-selection on November 21, 2000, but she did not contact
an EEO Counselor until January 18, 2001, which was beyond the 45-day
time limit set by the regulations. Despite complainant's assertions,
after a review of the record, the Commission does not find a continuing
violation in the instant case since the alleged incident was clearly a
discrete act.
In claim 2, complainant, in part, alleged that her supervisor filed
reckless and irresponsible charges with OPR. In claim 4, complainant
alleged that the OPR investigation was inadequate. After a review
of the record, the AJ determined, and we agree, that complainant was
collaterally attacking the internal investigation of the agency, i.e., the
OPR investigation. Thus, the Commission finds that the agency properly
dismissed the portion of claim 2 concerning the OPR investigation and
all of claim 4 for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1).
Turning to the remaining claims of the complaint, 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.
The Commission finds that grant of summary judgment was appropriate, as
no genuine dispute of material fact exists. The AJ found, and we agree,
that the agency, assuming arguendo that complainant had established
a prima facie case of discrimination, has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. With regard to
the remaining portion of claim 2, the AJ determined that the issuance of
the alleged suspension to complainant was justified due to its finding
of complainant's misconduct when she provided sensitive information to
a non-Bureau individual in violation of its Manual of Administrative
Operations.
With regard to claim 3, the AJ stated that the evidence in the record
suggested that there was tension between complainant and her supervisor
while they were in Panama City that made the office dysfunctional. The AJ
found that both complainant and her supervisor were filing complaints with
OPR about alleged misconduct by each other which was investigated and
ultimately lead to discipline against both of them. The AJ also found
that the U.S. Ambassador of Panama also complained to high-level FBI
officials about the dysfunction of the Legal Attache's Office in Panama.
The AJ determined that there was no evidence that the agency's decision
to move complainant out of Panama was motivated by discrimination.
With regard to claim 5, the AJ stated that the Career Board for the
position at issue convened to discuss, rate and recommend candidates and
ultimately selected a first ranked selectee. Complainant was ranked fifth
of twelve candidates. The agency stated that the selectee had extensive
experience investigating cases in each of the six host countries for
which the position at issue was responsible for whereas complainant had
virtually no experience regarding such investigations.
With regard to claim 6, the AJ stated that the agency indicated
that management by complainant's supervisor in the Panama office was
effective, but inefficient. The agency also stated that there was
inadequate leadership involving management of employees, disparities
in case assignments, and lack of communication between the supervisor
and complainant. After a review of the record, the AJ determined that
the alleged incidents were merely isolated, common workplace occurrences
that denoted office tension and poor management, but were not sufficiently
severe or pervasive so as to constitute a hostile work environment. The
AJ pointed out that there was no support in the record from complainant's
colleagues in the Panama office to demonstrate that the work environment
was permeated with discriminatory hostility by her supervisor.
With regard to claim 7, the agency stated that complainant's Division
Head, Special Agent in Charge, Critical Incident Response Group, did
not recommend complainant for the position at issue based on a number
of comments from other officials about complainant. Specifically,
complainant's current supervisor told him that complainant's ALAT position
had been previously terminated due to loss of managerial confidence in
her ability to represent the FBI overseas, and that she was avoiding work
and was uncoachable. The Deputy Assistant Director of the Investigative
Service Division, confirming the foregoing statement, told him that
complainant had interpersonal problems with her former supervisor while
working in Panama, but that she was otherwise an adequate worker and an
experienced agent. The Division Head also stated that the Unit Chief of
the International Operations Section also informed him that complainant
was a "medium performer" who did not do well while she was in Panama
and she would not recommend her for a promotion. Based on the foregoing
comments, the Division Head did not recommend complainant for the position
at issue. The Commission finds no indication that discrimination in any
way motivated the agency's decision not to recommend complainant for a
Unit Chief position.
Accordingly, the agency's final action is AFFIRMED.
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
March 16, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
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0120061237
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036