Sharon Rhone, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 8, 2004
01A34853_r (E.E.O.C. Apr. 8, 2004)

01A34853_r

04-08-2004

Sharon Rhone, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Sharon Rhone v. Department of Veterans Affairs

01A34853

April 8, 2204

.

Sharon Rhone,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A34853

Agency No. 2004-0652-2002102200

Hearing No. 160-2003-0036X

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.

The record reveals that complainant, an Administrative Officer, GS-9 at

the agency's Richmond, Virginia facility, filed a formal EEO complaint

on April 12, 2003. Therein, complainant claimed that the agency

discriminated against her on the bases of race (African-American),

national origin (American), and in reprisal for prior EEO activity when:

she was subjected to hostile work environment harassment; and

when the agency failed to promote her to the position of Administrative

Officer, GS-11.

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 complainant failed to establish that discrimination

occurred on any alleged basis. The AJ incorporated by reference, the

agency's Motion to Issue a Decision Without a Hearing, and issued a

decision dated June 26, 2003, finding no discrimination.

The agency's final order implemented the AJ's decision.

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, 322-323 (1986); Oliver v. Digital

Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is

"material" if it has the potential to affect the outcome of a 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.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether s/he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id. see also, United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Assuming arguendo, that complainant established a prima facie case of

discrimination, the Commission determines that the agency articulated

a nondiscriminatory reason for its actions. The agency stated that

complainant was not promoted to the GS-11 Administrative Officer position

because she was unable to maintain the educational and academic calendar

for the clinical staff; could not work on recruitment of fellows; and

could not provide assistance with VISA applications and issues for foreign

residents. In addition, the agency noted in its Motion for a Decision

Without a Hearing, that complainant did not exercise adequate supervisory

controls over her subordinates; failed to conduct appropriate follow up

on various activities; and failed to meet deadlines. According to the

agency, these were the reasons that complainant was not promoted to the

GS-11 position, and not because of any discriminatory reason.

Because the agency has proffered legitimate nondiscriminatory reasons for

the identified events, complainant now bears the burden of establishing

that the agency's stated reasons are merely a pretext for discrimination.

Shapiro v. Social Security Administration, EEOC Request No. 05960403

(December 6, 1996). Complainant can do this by showing that the agency

was motivated by a discriminatory reason. Id. (citing St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993)). The Commission finds that

complainant failed to present evidence to support a finding or create

an inference that the agency's articulated reasons for not promoting

her to the GS-11 Administrative Officer position, are a pretext for

discrimination on any basis.

Complainant also alleged that she has been subjected to a hostile work

environment and harassment. Specifically, complainant alleges that

her supervisor has not supported her attempts to be promoted; has made

negative comments regarding promoting her; and is overly critical of

her work. In order to establish a claim of harassment based on race,

sex, disability, age, or retaliation, complainant must show that: (1) she

is a member of a protected class; (2) she was subjected to harassment in

the form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term, or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile,

or offensive work environment; and (5) there is a basis for imputing

liability to the employer. Roberts v. Department of Transportation,

EEOC Appeal No. 01970727 (September 15, 2000); McCleod v. Social Security

Administration, EEOC Appeal No. 01963810 (August 5, 1999)(citing Henson

v. Dundee, 682 F.2d 897 (11th Cir. 1982)).

The Commission determines that complainant has not presented evidence to

support her harassment claim. Specifically, we determine that complainant

has not established that she was subjected to harassment so severe and/or

pervasive so as to alter the conditions of her employment.

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

of summary judgment 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, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes.

Accordingly, the agency's final order implementing the AJ's decision is

hereby AFFIRMED for the reasons set forth herein.

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

April 8, 2004

__________________

Date