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