Emerita G.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 8, 2019

0120182520 (E.E.O.C. Nov. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emerita G.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120182520

Hearing No. 570-2016-01390X

Agency Nos. ARCEHECSA15AUG03253, ARCEHECSA15OCT04030

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated June 7, 2018, finding no discrimination
regarding her complaints alleging 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal
Employment Specialist, GS-11, in U.S. Army Corps of Engineers, Baltimore Engineer District,
Baltimore, Maryland.

On November 17, 2015, Complainant filed her complaints alleging discrimination in reprisal for
prior EEO activity when:

(1) Since October 19, 2014, she was denied access to EEO systems;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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(2) On August 20, 2015, she was denied training by her second level supervisor (S2); and

(3) On October 22, 2015, she received her annual appraisal for Fiscal Year 2015 from S2.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On February 28, 2018, the Agency filed a Motion for
Summary Judgment and Complainant did not file a response. On May 18, 2018, the AJ issued a
decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s decision. Complainant appeals the Agency’s final order.

ANALYSIS AND FINDINGS

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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ adopted and incorporated by reference the Agency’s statement of
undisputed material facts. We note that Complainant did not file an opposition motion to
summary judgment, made no discovery requests, and filed no brief on appeal. The AJ, assuming
arguendo that Complainant had established a prima facie case of discrimination, determined that
the Agency articulated legitimate, nondiscriminatory reasons for its actions.

Regarding claim (1), the Agency indicated that Complainant’s first level supervisor (S1) timely
requested to grant Complainant’s access to the EEO database system in February 2015. An
identified Agency Headquarters EEO Specialist indicated that she received a request to grant
Complainant access to the EEO database systems in February 2015, from S1 and that the request
was processed normally and was approved on September 10, 2015. The Agency indicated that
Complainant’s access was delayed because S1 failed to carry out certain job duties beginning
April 2015, due to his extended sick leave. Complainant acknowledged that S1 had been out
since July 24, 2015 and had not returned to work as of October 31, 2015. Complainant indicated
that her last day with the Agency was October 31, 2015, since she accepted another position with
a different Agency.
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Regarding claim (2), S2 indicated that Complainant was not denied the training. Since the
course Complainant was scheduled to attend was a week long and was not mandatory, it was
rescheduled until later due to S1’s absence and the critical state of the workload at that time. S2
indicated that there was no one to cover the office in Complainant’s absence since the Baltimore
office was basically a two-person run shop (Complainant and S1) and S1 was on extended leave
at that time.

Regarding claim (3), S2 stated that Complainant was rated “Successful,” Level 3, for the rating
period from October 19, 2014 through October 31, 2015, because she did not perform above the
successful level and she met the expectations of her position. For instance, S2 indicated that
Complainant performance lacked when managing the Special Emphasis Programs. Furthermore,
it appears that the office as a whole was considered not to be performing well, and this
influenced ratings as well. S2 noted that during the informal stage of the instant complaint, upon
Complainant’s request, the subject rating was pulled from her file. Complainant acknowledged
this.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found, and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 8, 2019
Date