01a53034
05-12-2006
Tracy K. Ownley, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Tracy K. Ownley v. Department of the Navy
01A53034
May 12, 2006
.
Tracy K. Ownley,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A53034
Agency Nos. 04-00183-009, 04-00183-020
Hearing Nos. 120-2004-00491X, 120-2004-00492X
DECISION
Complainant filed an appeal from the agency's final action dated March 2,
2005, finding no discrimination with regard to her complaints. In her
complaints, dated November 10 and December 24, 2003, complainant, a
Secretary, GS-5, at the agency's Office of Automation, the Naval Medical
Center, Portsmouth, Virginia, alleged that: (1) she was subjected to
a hostile work environment based on sex (female) when on September
11, 2003, her supervisor hit her with a file filled with papers and
denied her 30 minutes of compensatory time that she had worked; and
(2) she was discriminated against on the basis of reprisal for prior
EEO activity with respect to reassignment, assignment of duties,
changes in work area location, and supervision. Upon completion of
the investigation of the complaints, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On January 25, 2005, the AJ
issued a decision without holding a hearing, finding no discrimination.
The agency's final action 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, 322-23 (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, the Commission finds that the AJ's issuance of a decision
without a hearing was proper in this case since there is no genuine
issue of material fact. The AJ stated that complainant's claim (1)
did not rise to the level of discriminatory harassment. The AJ also
stated that assuming arguendo that complainant had established a prima
facie case of discrimination, the agency has articulated legitimate,
non-discriminatory reasons for claims (1) and (2) in the complaints.
With regard to claim (1), complainant claimed that on September 11, 2003,
she submitted her corrected time card for 30 minutes of compensatory
time for the period of September 2 to 6, 2003. Complainant also claimed
that after the confrontation about the compensatory time, her supervisor,
Facilities Management Officer, Lieutenant Commander (LCDR), disapproved
her request and threw a folder filled with timekeeping papers hitting
her in the back of her head/shoulder area. The LCDR denied hitting
complainant with the folder; rather, he stated that he tossed it onto
complainant's desk. Complainant acknowledged that while the LCDR was
questioning her about the justification for her compensatory time, she
turned her back to him and continued her work. Based on the foregoing,
including other employees' statements in the record, it appears that
complainant and the LCDR had a personal conflict and did not get along
well. No employee who was at work witnessed the actual confrontation
at issue. One employee stated that on the date of the alleged incident,
complainant appeared upset and commented that, �I may have to put up
with this shit at home, but I don't have to put up with it here.� The
Commission finds that the alleged folder throwing incident in claim (1)
was not sufficiently severe or pervasive to constitute a hostile work
environment and, furthermore, we find that complainant did not show that
the alleged agency action, if true, was motivated by discrimination.
It is not clear if the compensatory time incident is meant to be
a separate claim apart from the harassment claim. Furthermore,
on appeal complainant indicates that she was ultimately allowed the
compensatory time. To the extent that the initial compensatory time
denial is a separate claim in the complaint, we find that complainant
has not refuted the agency's claim that complainant had insufficient
justification for working compensatory time and had not obtained advance
approval of such time. Therefore, we find that the AJ properly found
no discrimination regarding the initial denial of compensatory time.
With regard to claim (2), complainant claimed that after the foregoing
incident, her duties, assignment, and work location were changed.
The agency stated that after complainant reported the foregoing
incident, it immediately investigated the alleged assault which
could not be substantiated. However, the investigator recommended
one of the two be moved. Based on this recommendation, the Captain,
Director for Administration, recommended that complainant be moved to
a comparable secretary position, a Secretary, GS-5, at its Ambulatory
Procedures Department because she and the LCDR did not get along and
it was a better business case to reassign the Secretary, complainant,
rather than the Department Head, the LCDR.
Complainant also claimed that on October 2, 2003, she was denied access
to the office computer-generated calendar used to schedule appointment
for the LCDR. The record indicates and complainant admitted that the
subject access was restored thereafter on October 20, 2003. The agency
stated that the incident was not intentional but was a result of a
software reinstallation. Complainant proffered no evidence to refute
the agency's argument.
Complainant claimed that on October 1, 2003, she was made to exchange
desks with her coworker which no longer allowed her to greet incoming
guests and be involved in office business. The agency stated that
this desk swap was made because both complainant and the LCDR expressed
discomfort with having to sit where they could see each other from their
respective work stations. The Supervisory Civil Engineer recommended,
and the Captain concurred, the desk swap at issue and disagreed with
complainant's contention that this action prevented her from being
involved in office business as she was moved to a cubicle in a physical
relocation of less than 10 feet. Most people entering the building for
facilities business were familiar with the office layout and they could
easily locate complainant according to the agency.
Complainant also claimed that on September 12, 2003, she was notified that
her first line supervisor, the LCDR, had been changed to a new supervisor,
the Supervisory Civil Engineer. The agency stated that supervision
was changed to ease tensions by separating complainant and the LCDR.
The Captain stated that this arrangement was made because complainant
did not want to work for the LCDR, they had an ongoing investigation,
and he wanted to separate the two without actually taking complainant
out of the work environment.
Complainant claimed that from September 12, 2003 through December 28,
2003, duties were taken away from her, which prevented her from being
able to perform the full scope of duties in her position as Secretary.
The Supervisory Civil Engineer stated that the only duty he recalled being
removed from complainant was that of having to drop off and pick up mail
in the LCDR's office. He also stated that he took on that responsibility
to the extent of physically obtaining the mail and placing a box in his
own office for the in/out mail from the LCDR for complainant to pick up.
He indicated that he also provided tasking to complainant which the LCDR
had passed onto him.
Based on the foregoing, the Commission finds that the agency articulated
legitimate, non-discriminatory reasons for the alleged actions. The
Commission also finds that complainant failed to provide any evidence
that the articulated reasons were pretextual or that any agency action
was motivated by discrimination.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
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
May 12, 2006
__________________
Date