Pearl M. Hyde, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionOct 26, 2001
01A13105 (E.E.O.C. Oct. 26, 2001)

01A13105

10-26-2001

Pearl M. Hyde, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Pearl M. Hyde v. Defense Commissary Agency

01A13105

October 26, 2001

.

Pearl M. Hyde,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 01A13105

Agency No. 99DCW-14F-054

Hearing No. 370-A1-X2018

DECISION

Complainant timely initiated an appeal from the agency's final decision

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., the

Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she

was discriminated against on the bases of her disability (ankle brace

and asthma) when she was not allowed to attend �pallet-in-training.�

Complainant also alleges that she was discriminated against on the

bases of her race (Black), sex (female), age (66), and reprisal (prior

EEO activity under Rehabilitation Act) when: she was not converted

to a full-time position; her wage grade did not increase to WG-5; and

she received less favorable assignments than her co-worker. For the

following reasons, the Commission AFFIRMS the agency's final decision.

ISSUES PRESENTED

Whether complainant was discriminated against on the basis of her

disability when she was not permitted to attend �pallet-in-training.�

Whether complainant was discriminated against on the bases of race,

sex, age, and/or reprisal when she was not converted to a full-time

position, her wage grade was not changed, and she received less favorable

assignments than a co-worker.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a WG-6914-04 Store Worker, at the McClellan Air Force Base (AFB)

Commissary, in Sacramento, California. Complainant filed a formal EEO

complaint on November 10, 1999, alleging that the agency had discriminated

against her as referenced above. At the conclusion of the investigation,

complainant was provided a copy of the investigative report and requested

a hearing before an EEOC Administrative Judge (AJ). On January 8, 2001,

the AJ issued a Notice of Intent to Issue a Decision Without a Hearing.

Complainant and the agency both filed responses. The AJ issued a decision

without a hearing, finding no discrimination. The AJ concluded that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

Specifically, the AJ found that the agency offered �pallet-in-training�

only to those employees who used electric jacks on a daily basis, which

complainant did not.

The AJ also concluded that, in regard to complainant not being converted

to a full-time position, although vacancies for full-time positions

did become available, those vacancies were filled through the Priority

Placement Program (PPP) system. The AJ noted that registrants on the

PPP list are not identified by race, age, disability, or EEO history.

Regarding complainant's claim that she was not converted to the Wage

Grade-5 level, the AJ concluded that complainant's lack of promotion was

due to her failure to perform the requisite duties of a WG-5 employee.

In regard to complainant's claim that she received less favorable

assignments, the AJ noted that the agency treated complainant's co-worker

(CW1) differently because she was WG-5 Meat Cutter Worker and complainant

was a WG-4 Store Worker.

The AJ further concluded that complainant did not establish that more

likely than not, the reasons provided by the agency were a pretext for

discrimination or retaliation. In reaching this conclusion, the AJ found

that although complainant produced several documents listing the WG-5

tasks that she performed, she failed to produce any evidence that the

meat manager (M1) was aware of that fact. The agency's final decision

implemented the AJ's decision. Complainant makes no new contentions on

appeal, and the agency requests that we affirm its final decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

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. 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 does not

sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ

may properly consider summary judgment only upon a determination that

the record has been adequately developed for summary disposition.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

In analyzing a disparate treatment claim under the Rehabilitation Act,

where the agency denies that its decisions were motivated by complainant's

disability and there is no direct evidence of discrimination, we apply

the burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village

Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68

(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999).

Under this analysis, in order to establish a prima facie case, complainant

must demonstrate that he or she: (1) is an "individual with a disability";

(2) is "qualified" for the position held or desired; (3) was subjected

to an adverse employment action; and (4) the circumstances surrounding

the adverse action give rise to an inference of discrimination.

Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden

of production then shifts to the agency to articulate a legitimate,

non-discriminatory reason for the adverse employment action. In order

to satisfy this burden of proof, complainant must then demonstrate by

a preponderance of the evidence that the agency's proffered reason is

a pretext for disability discrimination. Id.

With regard to reprisal discrimination, the Commission has stated that:

The anti-reprisal provision of Title VII protects those who participate

in the EEO process and also those who oppose discriminatory employment

practices. Participation occurs when an employee has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding or hearing. Participation also occurs when an employee files

a labor grievance, if the employee raised issues of unlawful employment

discrimination in the grievance. . . . A variety of activities has been

found to constitute opposition . . . . Because the enforcement of Title

VII depends on the willingness of employees to oppose unlawful employment

practices or policies, courts have interpreted section 704(a) of Title

VII as intending to provide �exceptionally broad protection to those

who oppose such practices'. . . ."

Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784

(February 21, 1992) (citations omitted).

Finally, we note that Title VII protects a person "where the employee

has a reasonable, good faith belief that the challenged employment

practice violates Title VII, even if the belief is later found to be

mistaken. . . . The mistaken belief may be one of law or of fact."

Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868

(E.D. Wis. 1985).

After a careful review of the record, and assuming, but without finding,

that complainant is an individual with a disability within the meaning of

the Rehabilitation Act, the Commission finds that the AJ did not err when

she concluded that the agency did not discriminate against complainant

on any basis. In finding no disability discrimination, the AJ relied

on the undisputed evidence regarding the fact that only employees who

used electric jacks on a daily basis were provided �pallet-in-training.�

Accordingly, because complainant did not engage in daily use of electric

jacks, she was not selected for the training class. Moreover, complainant

did not provide evidence that she was treated differently than similarly

situated non-disabled employees.

We also find that the agency articulated a legitimate nondiscriminatory

reason for not converting complainant to a full-time position.

Specifically, the agency filled vacancies from its PPP list, which is

comprised of persons affected by reductions-in-force. In point of fact,

the registrants on the PPP list are not identified by race, age, or

prior EEO activity. In addition, per the Commissary Officer's affidavit,

once a vacancy is identified as having matches on the PPP list, no one

already working for the agency could be considered for the position.

We further find that although complainant provided several documents

regarding tasks she performed, she did not show that M1's failure to

promote her was based on discriminatory animus or retaliatory motive.

In point of fact, M1 stated that complainant had not been promoted because

she did not perform the duties of a WG-5 employee. Complainant did not

establish that the agency's articulated reason for not promoting her

was a pretext. Accordingly, we are not persuaded that the AJ erred

in determining that complainant failed to establish that there was a

genuine issue of material fact precluding the grant of summary judgment.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's race, sex, age, and/or

disability. We discern no basis to disturb the AJ's decision. Therefore,

after a careful review of the record, including complainant's contentions,

the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

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 26, 2001

__________________

Date