01a41052
03-29-2005
Raquel Gordon, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, (Patent and Trademark Office), Agency.
Raquel Gordon v. Department of Commerce
01A41052
March 29, 2005
.
Raquel Gordon,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
(Patent and Trademark Office),
Agency.
Appeal No. 01A41052
Agency No. 01-56-46
Hearing No. 100-A2-7529X
DECISION
Complainant timely initiated an appeal from the agency's final order
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Primary Patent Examiner,
GS-14, with the agency's Patent and Trademark Office, filed a formal
EEO complaint on May 25, 2001, alleging that the agency discriminated
against her on the bases of race (African-American), sex (female), and
reprisal for prior EEO activity when she was sexually harassed by her
previous supervisor (S1), and subjected to a hostile work environment
by her current supervisor (S2).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that after viewing the evidence in a light most favorable
to complainant, a decision without a hearing was appropriate as there
were no genuine issues of material fact in dispute. The AJ found that
complainant's claim that she was sexually harassed by S1 is untimely
because complainant had not been under S1's supervision for more than 2
years at the time she sought EEO counseling on the issue. (Report of
Investigation, Exhibit 4, Tab 14, 117-125). The AJ also found that
complainant failed to show that she was subjected to a harassment by S2.
Specifically, although complainant contends that S2 created a hostile
work environment by taking cases from her docket and failing to assign
her cases in her area of expertise, the AJ found that record evidence
shows that complainant was not entitled to be assigned cases strictly
in her area of expertise. (R.O.I., Exhibit 1). Further, the AJ found
that despite complainant's lack of entitlement, most of the cases in the
subclasses at issue were, in fact, assigned to complainant. (R.O.I.,
Exhbit 2, F). The AJ also found that complainant failed to show that
S2 treated her any differently than other examiners in her unit with
respect to opportunities to classify patent applications and work on
petitions received by her unit. (R.O.I., Exhibit 2, D).
With respect to complainant's contention that S2's actions were taken
in attempt to block her career progress, the AJ found that the record
failed to support the assertion because, during the period at issue,
S2 promoted complainant twice and gave her performance ratings of
commendable and outstanding. (R.O.I., Exhibit 2, A-C; Exhibit 4, Tab 8).
The AJ concluded, therefore, that because complainant failed to establish
that any of the agency's actions were motivated by discriminatory or
retaliatory animus, she failed to show that she was subjected to hostile
work environment harassment.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in issuing a decision without
a hearing as there are genuine issues of material fact in dispute.
Specifically, complainant reiterates her contention, despite S2's
statements to the contrary, that her docket was hidden and starved of
cases in order to slow her production, and that she was denied career
advancement opportunities.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a decision
without a hearing 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, we concur with the AJ's finding that because
complainant failed to show that the agency's articulated legitimate,
nondiscriminatory reasons for its actions were a pretext for unlawful
discrimination or retaliation, complainant failed to establish that she
was subjected to prohibited harassment. See Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000); Applewhite v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01994939 (April 6,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998); EEOC Guidance on Investigating, Analyzing Retaliation
Claims, No. 915.003 (May 20, 1998). We note that, despite complainant's
contentions on appeal, the record does not show that S2 acted to hinder
complainant's career advancement. Accordingly, we affirm the agency's
final order.
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 29, 2005
__________________
Date