0120071089
04-08-2009
Evelyn Polanco, Complainant, v. BJ Penn, Acting Secretary, Department of the Navy, Agency.
Evelyn Polanco,
Complainant,
v.
BJ Penn,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120071089
Agency No. 04-00024-003
Hearing No. 100-2005-00005X
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. Complainant alleged that she
was subjected to discrimination in reprisal for prior EEO activity when:
1. On August 5, 2003, complainant's supervisor provided negative comments
on her Performance Evaluation.
Complainant alleged that she was subjected to discrimination on the
bases of sex (female), age (62), and in reprisal for prior protected
EEO activity when:
2. On June 29, 2003, complainant was not reassigned to her previously
held position.
On October 13, 2006, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On November 17, 2006, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision.1 We find that the AJ
correctly defined the issues in the complaint.
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.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. Regarding claim 1, complainant argued that she
had been discriminated against when the Logistic Director, her manager,
pointed out her need for improvement in the 2003 evaluation. The Logistic
Director gave complainant an acceptable rating in her 2003 evaluation,
but noted the need for improvement. The Logistic Director asserted that
his comments in complainant's 2003 performance appraisal were based on
complainant's failure to complete the Computer Aided Dead Reckoning
Tracer (CADRT) project. The Logistic Director claimed that he wrote
that complainant needed to work on the task execution skills for the
following reasons: 1) complainant failed to complete the CADRT on time;
2) complainant failed to set priorities and organize her workload; and 3)
complainant refused to do anymore work after learning of her reassignment.
The Logistic Director stated that he wrote that complainant needed to work
on her communication skills based on the following actions: 1) complainant
failed to communicate with him regarding the problems that she was having
with the assignment prior to him asking for updates; 2) complainant
refused to talk with him after learning of her pending reassignment;
and 3) he asked complainant to seek support from three coworkers and
complainant's end product did not reflect those communications.
As to claim 2, complainant, was a GS-9 Logistics Management Specialist
prior to the reorganization. As a result of the reorganization,
complainant's position was abolished and she was reassigned to the Naval
Sea Systems Command (NAVSEA) Placement Program at the same grade and pay.
That reassignment is not at issue in this complaint. Complainant argues
in the instant complaint that she was discriminatorily not allowed to
return to her former position when two other employees were returned to
their GS-13 positions. The record shows that both of these other employees
had their positions abolished during the reorganization and that both
of these employees were selected for new GS-13 positions. Neither of
these employees ever transferred to the NAVSEA Placement Program.
Complainant did not claim she applied for the new GS-13 positions or
any new GS-9 position. Thus, complainant was not similarly situated
to these two employees.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Moreover, complainant failed to show, by a preponderance of the evidence,
that she was discriminated against on the alleged bases.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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 8, 2009
__________________
Date
1 Complainant's complaint also included eight additional issues dated
from April 2000 to May 2003. On February 23, 2004, the agency issued a
decision dismissing the eight additional issues. There is no indication in
the record that complainant challenged the dismissal of these additional
issues with the AJ or raised the matter in the instant appeal. Therefore,
we will not address these issues in this decision.
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0120071089
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013