Berenda M. Ford, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a50371 (E.E.O.C. Mar. 16, 2005)

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