01a53814
10-14-2005
Norphenia W. Salter, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Norphenia W. Salter v. Small Business Administration
01A53814
October 14, 2005
.
Norphenia W. Salter,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A53814
Agency No. 02-03-012
Hearing No. 110-2004-00301X
DECISION
Complainant filed an appeal from an agency's February 24, 2005
notice of final action concerning her complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
dated February 12, 2003, complainant, a former GS-11 Loan Analyst in
the agency's Disaster Assistance Program in Atlanta, Georgia, alleged
discrimination based on age (52) when her one year term employment was
not renewed on August 10, 2002.
Initially, it is noted that on April 9, 2003, the agency previously issued
a decision dismissing the complaint due to untimely EEO Counselor contact.
Complainant appealed and the Commission, in EEOC Appeal No. 01A33113
(August 28, 2003), reversed the agency's decision and remanded the
complaint back to the agency for further processing. Accordingly, the
agency investigated the complaint, and after its completion, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On January
31, 2005, the AJ issued a decision without holding a hearing, finding
no discrimination.<1> 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. 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.
Upon review, the Commission finds that the grant of summary judgment was
appropriate, as no genuine dispute of material fact exists. Specifically,
the AJ stated, assuming arguendo that complainant had established a prima
facie case of discrimination, that the agency has articulated legitimate,
non-discriminatory reasons for its action. The AJ noted the fact that
the agency employed three separate job categories of Loan Specialists.
The first category was that of temporary employees who were the first ones
let go in the course of a work force reduction. The second category was
that of term employees, who were hired for a one-year term that extended
for a maximum of four years; they got laid off after temporary employees.
The agency stated that although it was a common practice to use the
retention register with regard to term employees, this practice was
not reflected in any formal policy, and management could deviate from
that. The third category of employees were that of cadre employees.
They were members of the civil services and they were the last category
of employees that the agency reached when it reduced its work force.
The agency indicated that management used the retention register to
decide which cadre employees would be placed in non-pay status, and this
policy/practice was contained in writing.
Specifically, complainant's supervisor stated that she used the retention
register as a starting point in deciding whose contracts would be
extended, but that she believed that she had full discretion to deviate
from the register as long as she provided a written business explanation
as to why she did so. The Personnel Specialist, concurring with the
supervisor, stated that it was the standard operating procedure that the
managers use the retention register as a starting point in deciding who
would be retained, but they were allowed to skip over employees on the
lower end of the register that they wanted to retain, as long as they
provided a written business reason for doing so.
Complainant's supervisor indicated that at the relevant time, she looked
at the employees' efficiency rating and their experience with processing
Phase III EIDL loans in deciding whose term contracts would be extended.
The supervisor stated that Phase III EIDL loans were complicated loans
that had become more important in the wake of the September 11, 2001
terrorist attacks and represented the major part of the remaining
workload. Specifically, the supervisor indicated that complainant
lagged behind all of the other retained employees with respect to both
efficiency rating and Phase III EIDL loans processing. After a review of
the record, the AJ determined that there was no evidence that suggested
that the agency deviated from the retention register in ways to single
out complainant. The AJ concluded that complainant failed to show by
a preponderance of the evidence that the agency's proffered reasons
were pretextual.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, the agency's final
action is hereby AFFIRMED because the AJ's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.
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
October 14, 2005
__________________
Date
1Complainant's case was consolidated with
five other cases.