0120061932
04-11-2007
Eileen Kastava, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Eileen Kastava,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200619321
Agency No. AD-2004-0739
Hearing No. 100-2004-00842X
DECISION
Complainant filed an appeal from the agency's final action dated February
22, 2006, finding no discrimination with regard to her complaint. In her
complaint, dated November 12, 2003, complainant, a Customs Inspector
Program Officer, GS-14, at the agency's Management Inspection Division
(MID), Internal Affairs, Washington, D.C., alleged discrimination
based on sex (female) when: (1) since February 2003, and continuing,
she has not been assigned work commensurate with her GS-14 grade level;
(2) on September 26, 2003, she failed to receive the same performance
award as her male counterparts; and (3) on October 17, 2003, she was
not afforded the opportunity to be designated as the Acting Assistant
Director, Operations.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On November
28, 2005, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action 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.
The Commission finds that grant of summary judgment was appropriate, as no
genuine dispute of material fact exists. The AJ found 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 claim (1), the Acting Director
denied the distribution of work was predicated on an employee's sex;
rather, he stated that it was based upon individual skills, knowledge,
and competencies of each employee. The Acting Director also stated that
complainant's performance was that of an average employee and she did
receive work commensurate to her position and "high profile" work.
With regard to claim (2), the Acting Director stated that complainant
received a cash award commensurate with her overall performance.
He indicated that the cash awards were not based on an employee's sex,
but rather performance. The record indicates that some female employees
received higher awards than some male employees. With regard to claim
(3), the Acting Director stated that he only considered an identified
Program Management Specialist for the Acting Assistant Director,
Operations assignment because he was the most viable person for
the position. The Acting Director indicated that he did not consider
complainant because in his evaluation and judgment, she did not possess or
demonstrate the necessary level of skills and competencies required for
the position, particularly the ability to review, analyze and interpret
a large variety of complex information and data, as well as the ability
to develop and implement new strategic and tactical plans for future
organization missions and goals. The Commission finds that complainant
failed to show how any agency action was motivated by discrimination
based on sex.
Accordingly, the agency's decision 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
April 11, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120061932
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036