0120093204
08-04-2011
Carolyn K. Cunningham, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Carolyn K. Cunningham,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093204
Hearing No. 440-2008-00095X
Agency No. ARHQOSA07MAR00959
DECISION
Complainant filed an appeal from the Agency’s final order dated June
23, 2009, finding no discrimination with regard to her complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In her complaint, dated May 7, 2007, Complainant, a GS-13, Equal
Employment Opportunity (EEO)/Equal Opportunity (EO) Officer at the
Headquarters, United States Military Entrance Processing Command (MEPCOM)
in North Chicago, Illinois, alleged discrimination based on race (African
American) and sex (female) when on March 16, 2007, she was informed that
her position as a GS-13, EEO Officer position would not be upgraded to
the GS-14 level.
Upon completion of the investigation of the complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On June
12, 2009, the AJ issued a decision without holding a hearing, finding
no discrimination. The Agency’s final order implemented the AJ’s
decision.
ANALYSIS AND FINDINGS
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for not upgrading her position. Complainant
claimed that her position upgrade request was based on her performing
duties including increased reporting requirements, interfacing with
Navy and Air Force EEO officers, a changed organizational structure, and
implementation of “No Fear Act” requirements and an “Individual with
Disabilities” program. Complainant’s second level supervisor (S2)
stated that the additional duties Complainant identified were already
within the scope of her GS-13 position description. Specifically, the
S2 indicated that Complainant’s duties as she claimed did not increase
the complexity of her responsibilities rather it represented an increase
of her workload.
Complainant’s first level supervisor (S1) indicated that after examining
Complainant’s position upgrade request package, he did not think the
current duties she was performing warranted an increase in grade from
GS-13 to GS-14. Specifically, the S1 stated that the Agency had recently
approved a GS-9 position to compensate for the increase in workload within
the EEO program and not to add military EO positions into Complainant’s
office. The S1 also indicated that he also sent Complainant’s position
upgrade request package to Human Resources Specialist, Civilian Personnel
Office, to review the request along with position descriptions for the
GS-13 and GS-14 levels. After a review, the Specialist concurred with
the S1 that Complainant was not performing at a GS-14 level even with
the additional duties she claimed. Upon review, we agree with the AJ’s
determination that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for its denial of her position upgrade request.
Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
8/4/11
__________________
Date
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0120093204
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093204