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