Cynthia Dumas, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.

Equal Employment Opportunity CommissionDec 17, 2004
01A32194_r (E.E.O.C. Dec. 17, 2004)

01A32194_r

12-17-2004

Cynthia Dumas, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.


Cynthia Dumas v. Department of Defense (Defense Intelligence Agency)

01A32194

December 17, 2004

.

Cynthia Dumas,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Intelligence Agency),

Agency.

Appeal No. 01A32194

Agency No. 00-DA-02

Hearing No. 100-A1-7601X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) 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.

For the following reasons, the Commission AFFIRMS the agency's final

order finding no discrimination.

The record reveals that complainant, an Administrative Assistant at the

agency's Office of Security and Counterintelligence, Counterintelligence

Division (DAC-1), Joint Counterintelligence Support Branch (JSBISB),

Counterintelligence and Security Activity, Directorate for Administration

(DA), Virginia facility, filed an EEO complaint on January 5, 2000,

alleging that the agency discriminated against her on the bases of race

(African-American) and sex (female) when:

On October 6, 1999, complainant's supervisor made disparaging remarks

about a female's physical appearance and made jokes about a co-worker's

ethnicity.

Complainant's complaint further alleged that she was subjected to reprisal

after she voiced her objection to the above-described discrimination to

agency management. The incidents of reprisal include the following:

Complainant's requests for overtime and compensatory time were denied;

Complainant's performance standards were changed;

Complainant's performance was rated unsatisfactory; and

Complainant was held to different standards than others regarding time

and attendance.

Complainant subsequently amended her complaint (twice) to include

allegations that she was subjected to continued reprisal when:

Complainant received a Letter of Instruction, dated January 3, 2000;

Complainant was given an interim performance counseling letter dated

March 6, 2000; and

Complainant was terminated, effective September 9, 2000 for poor

performance.<1>

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The AJ issued a decision without a hearing, finding no

discrimination. In his decision, the AJ adopted and incorporated the

agency's statement of the material facts as set forth in the agency's

Motion for Summary Judgment.

The AJ concluded that, regarding her initial complaint of harassment,

complainant failed to allege conduct that was either sufficiently severe

or pervasive enough to alter the terms and conditions of complainant's

employment. The AJ found complainant failed to establish a prima facie

case of harassment based on sex or race, when complainant's supervisor

made comments about a female agency employee's appearance, nor when

her supervisor commented on a co-worker's ethnicity. The AJ noted that

complainant was not the target of either comment and that the comments

made were isolated remarks.

Regarding complainant's reprisal claim, the AJ found that in its Motion,

the agency articulated legitimate, non-discriminatory reasons for each

of the agency actions, about which complainant complained, including the

agency's reasons for ultimately terminating complainant from her position.

The AJ found that complainant failed to produce any evidence of pretext.

Accordingly, the AJ found that complainant failed to prove, more likely

than not, that discrimination had occurred as alleged. The agency's

final order implemented the AJ's decision.

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.

After a careful review of the record, the Commission finds that grant of

summary judgment was appropriate, as no genuine dispute of material fact

exists. We find that the AJ's decision (incorporating the facts as set

forth in the agency's Motion for Summary Judgement) properly summarized

the relevant facts and referenced the appropriate regulations, policies,

and laws. Specifically, we find complainant failed to identify any

similarly situated individuals, not in complainant's protected classes,

who were treated any better than complainant was treated. On the contrary,

we find the evidence supports the agency's evaluation of her performance,

and legitimate efforts to address what it deemed to be deficiencies in

her time and attendance record. Construing the evidence to be most

favorable to 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 classes.

We therefore AFFIRM the agency's final order fully implementing the AJ's

finding of no discrimination.

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

December 17, 2004

__________________

Date

1In her June 6, 2000 amendment to her

complaint, complainant alleged discrimination on the basis of reprisal

when she was given a sustained unsatisfactory performance rating on May

24, 2000, and then a notice of proposed removal, dated May 25, 2000,

based in large part, on the unsatisfactory rating. The record indicates

that ultimately, the proposed removal became effective September 9, 2000.