Raquel Gordon, Complainant,v.Carlos M. Gutierrez, Secretary, Department of Commerce, (Patent and Trademark Office), Agency.

Equal Employment Opportunity CommissionMar 29, 2005
01a41052 (E.E.O.C. Mar. 29, 2005)

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