Eileen Kastava, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionApr 11, 2007
0120061932 (E.E.O.C. Apr. 11, 2007)

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