01981682
04-27-2001
Ciria Sanchez-Baca, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Ciria Sanchez-Baca v. Department of Education
01981682, 01981683
4/27/01
.
Ciria Sanchez-Baca,
Complainant,
v.
Richard W. Riley,
Secretary,
Department of Education,
Agency.
Appeal Nos. 01981682, 01981683
Agency Nos. ED-91-19000, ED-95-55000
Hearing Nos. 100-97-7341X, 100-97-7170X
DECISION
Complainant timely initiated appeals from agency's final decisions
concerning her equal employment opportunity (EEO) complaints 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The complaints
are consolidated pursuant to 29 C.F.R. � 1614.606. The appeals are
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final decisions.
In her first complaint, complainant alleged that she was discriminated
against on the bases of age (48 at the time), sex (female), national
origin (Mexican-American), color (brown), disability (rheumatoid
arthritis), and reprisal (prior EEO activity), when she was informed on
December 18, 1990, that she did not receive a non-competitive promotion
through accretion of duties.
In her second complaint, complainant alleged that she was discriminated
against on the bases of age (53), sex (female), national origin
(Mexican-American), religion (Catholic), and disability (rheumatoid
arthritis), when she received a �fully successful� rating for the period
of October 1, 1993 through September 30, 1994.
The record reveals that complainant, then an Education Specialist
- Expert, GS-13, at the agency's Office of Special Education and
Rehabilitation Services, filed formal EEO complaints with the agency
on March 28, 1991 and September 26, 1995, alleging that the agency had
discriminated against her as referenced above. At the conclusion of
the investigations, complainant received a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge (AJ).
For both complaints, the assigned AJ issued decisions without a hearing,
finding no discrimination.
In the decision for the first complaint, the AJ found complainant
failed to establish a prima facie case on any bases because she failed to
demonstrate that similarly situated employees not in her protected classes
were treated differently under similar circumstances. Furthermore, the
AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that complainant was denied a
non-competitive promotion because the position she sought non-competitive
promotion to was a newly created position, rather than her position
of record. Therefore, the AJ found the evidence revealed that even if
the position had originally been classified at GS-14, which it had not,
complainant did not qualify for an accretion of duties promotion.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that complainant produced no evidence that duties had accreted to her
position, or that her supervisor denied her a promotion because of a
discriminatory animus.
As for complainant's second complaint, the AJ found complainant failed to
establish a prima facie case of sex discrimination because none of her
cited comparatives were outside of her protected class. Furthermore,
the AJ found complainant failed to establish she was an individual with
a disability.
The AJ also found the agency articulated legitimate, non-discriminatory
reasons for its actions, namely, that complainant's performance rating
was based on an assessment of her performance and that of comparable
employees, using pre-established job criteria. The AJ found no evidence
that discrimination on one of the aforementioned bases was the real
reason for the �fully successful� performance rating.
On December 1, 1997, the agency issued final decisions that adopted
the AJ's recommended decisions. On appeal, complainant argues the AJ
erred when she found complainant failed to establish a prima facie case.
In her appeal for her second complaint, complainant also alleges that
she was denied an accommodation for her disability. In response, the
agency restates the position it took in its FAD, and requests that we
affirm its final decision.
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 esists 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, 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, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Complainant failed
to produce sufficient evidence that would establish a dispute as to
a genuine issue of material fact. The record reveals complainant
has an appeal pending concerning her claim that she was denied an
accommodation (EEOC Appeal No. 01996465). Her allegations that she
was denied an accommodation will be addresses therein. Complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, color, religion,
age, national origin, or sex. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
4/27/01
Date