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