01a50371
03-16-2005
Berenda M. Ford, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Berenda M. Ford v. Department of Veterans Affairs
01A50371
March 16, 2005
.
Berenda M. Ford,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50371
Agency Nos. 200L-0596-2002104785, 200L-0596-2003100652,
200L-0596-2003101571
Hearing Nos. 240-2004-00005X, 240-2004-00040X
DECISION
Complainant appeals to the Commission from the agency's September 30, 2004
decision finding no discrimination. Complainant alleged discrimination
on the bases of reprisal (prior EEO activity), race (Black), and sex
(female) when: (1) on November 7, 2002, complainant was not selected for
the position of Inventory Management Specialist; (2) on November 7, 2002,
complainant was not selected for the position of Supervisory Inventory
Specialist; (3) on January 24, 2003, complainant was not selected for the
position of Supervisory General Supply Specialist; and (4) complainant was
subjected to a hostile work environment. An EEOC Administrative Judge
(AJ), without holding a hearing, issued a decision on September 15,
2004, finding no discrimination. The agency, on September 30, 2004,
issued a decision adopting 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.
We find that the agency articulated legitimate, nondiscriminatory
reasons for the non-selection decisions. Specifically, the selecting
official for the Inventory Management Specialist position noted that
the selectee had eight years of automated inventory management program
experience as compared to complainant's two months experience in
that area. Regarding the Supervisory Inventory Management Specialist
position, the selecting official based her decision on the selectee's
broad experience as compared to complainant's limited experience and
knowledge for the position. Regarding the Supervisory General Supply
Specialist position, we agree with the AJ that complainant did not meet
the one year of specialized experience requirement. With respect to
complainant's hostile work environment claim, the Commission agrees with
the AJ that the agency's actions do not rise to the level of a hostile
work environment because they were not sufficiently severe and pervasive
enough to create a hostile work environment. The AJ noted, and we agree,
that the incidents cited by complainant were isolated.
Complainant failed to rebut the agency's legitimate, nondiscriminatory
reasons for its non-selection decisions. Furthermore, complainant failed
to show that her qualifications for the positions were observably superior
to those of the selectees. Complainant failed to show, by a preponderance
of the evidence, that she was discriminated against on the bases of race
or sex or in reprisal for protected activity.
Accordingly, 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
March 16, 2005
__________________
Date