Karen A. Irons, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 30, 2006
01a55536_r (E.E.O.C. Mar. 30, 2006)

01a55536_r

03-30-2006

Karen A. Irons, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Karen A. Irons v. Department of the Air Force

01A55536

March 30, 2006

.

Karen A. Irons,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A55536

Agency No. OU1C04004F05

Hearing No. 360-2005-00072X

DECISION

Complainant initiated an appeal from the agency's final order, dated July

19, 2005, 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.

The record reveals that complainant, a Program Analyst (Air Reserve

Technician) at the agency's Red Horse Squadron, San Antonio, Texas

facility, filed a formal EEO complaint on March 2, 2004, alleging that

the agency discriminated against her on the bases of race (Black),

national origin (African-American), sex (female), color (black), and

reprisal for prior EEO activity when:

(1) Complainant was subjected to ongoing harassment including:

Her supervisor did not offer her feedback concerning her performance;

Her supervisor did not communicate with her;

Her supervisor did not assist in developing her career.

On May 12, 2004, complainant received an annual performance appraisal

that did not accurately reflect her true performance for the applicable

rating period.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). By motion dated May 9, 2005, the agency

moved for a decision without a hearing. The AJ noted that complainant

did not respond to the agency's motion, and thereafter, granted the

agency's motion and issued a decision without a hearing, dated June 7,

2005, finding no discrimination.

The AJ adopted and incorporated into his decision, the statement of

facts contained in the investigator's analysis portion of the Report

of Investigation. The AJ concluded that complainant failed to establish

that the incidents of harassment she endured were sufficiently severe or

pervasive to materially alter the terms and conditions of complainant's

place of employment, especially in light of the limited communication

she had with her supervisors and the fact that her supervisor did not

work at the same location. Accordingly the AJ found that complainant

did not did not prove discrimination with respect to claim (1).

Regarding claim (2), her performance appraisal, the AJ found that

the evidence did not show that complainant received a less favorable

evaluation than individuals outside of her protected classes, or that

the evaluation she received was motivated by a discriminatory motive.

Accordingly, the AJ found that no discrimination occurred. The agency's

final order fully implemented the AJ's decision. This appeal followed.

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 properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, 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. Specifically, we concur with

the AJ that there exists no material dispute regarding the incidents of

alleged harassment described by complainant. Further, we concur that the

incidents described are not sufficiently severe or pervasive to establish

a hostile work environment. We note, as did the agency, that complainant

was unable to identify any similarly situated individuals who received

better performance appraisals who were in comparable positions and who

reported to the same supervisors. The record shows, and neither party

disputes, that complainant was reassigned to unclassified duties at the

Red Horse Squadron in part, pending the re-investigation of her security

clearance. None of the other employees identified by complainant as

receiving more favorable performance appraisals were similarly reassigned.

Accordingly, we concur with the AJ, in finding that complainant did not

prove discrimination with respect to her performance appraisal.

We therefore AFFIRM the agency's final decision finding 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

March 30, 2006

__________________

Date