Regina J. Ingraham, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 21, 2006
01a62830 (E.E.O.C. Sep. 21, 2006)

01a62830

09-21-2006

Regina J. Ingraham, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Regina J. Ingraham,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A62830

Agency No. ARFTCAMP05JAN06272

Hearing No. 240-2006-00015X

DECISION

Complainant filed an appeal with this Commission concerning her complaint

of unlawful employment discrimination. In her complaint, complainant

alleged discrimination on the bases of race (African-American) and in

reprisal for prior protected EEO Activity when on December 28, 2004, she

was denied promotion to a GS-0318-06 Secretarial position. Complainant

also alleged discrimination on the basis of religion (non-denominational)

when between 2003 and 2004, she was directed to forward electronic mail

messages with motivational quotes.

On February 28, 2006, an EEOC Administrative Judge (AJ) issued a decision

without a hearing finding that there was no genuine issue of material

fact in dispute, and concluded that complainant had not been discriminated

against. Specifically, the AJ found that the agency presented legitimate,

nondiscriminatory reasons for its actions, which complainant failed

to rebut. On March 20, 2006, the agency, fully implementing the AJ's

decision, issued a decision finding no discrimination. Complainant filed

the instant appeal.

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, we find that the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Regarding claim 1, the agency

stated that the secretarial position was not filled competitively.

The agency asserted that the position was filled by the lateral

transfer of an employee already serving as a GS-0318-06, Secretary,

in order to guarantee that the employee remained a permanent member of

the work force. Additionally, the agency claimed that complainant was

not eligible for consideration even if the Secretarial position had been

filled competitively because complainant could not be promoted two grades

above her present level.

As to claim 2, complainant claimed that she was required to forward a

thought of the day by electronic message. The chief of the department

composed the thoughts of the day and complainant was expected to forward

one of the thoughts of the day to department members at the beginning of

the her work day. The agency asserted that the purpose of the thought

of the day message was to improve moral and motivate people within

the department. The agency stated that complainant's forwarding the

alleged message was not intended to harass her.

After a review of the record, we find that complainant has failed to show

that the agency's reasons were pretext for discrimination. We also find

that complainant has failed to show, by a preponderance of the evidence,

that she was discriminated against on the bases of race, religion or

reprisal or that she was subjected to discriminatory harassment.

The agency's decision finding no discrimination is AFFIRMED.

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

September 21, 2006

__________________

Date

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01A62830

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A62830