01A23004
05-22-2003
Deborah C. Biesbrock, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Deborah C. Biesbrock v. Department of the Navy
01A23004
May 22, 2003
.
Deborah C. Biesbrock,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23004
Agency Nos. DON-99-00027-C02; DON-00-00027-C01
Hearing No. 140-A0-8002X
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that during the relevant period, complainant was
employed as a WG-3806-10, Sheet Metal Mechanic at the agency's, Naval
Aviation Depot, in Cherry Point, North Carolina. Complainant filed
formal EEO complaints on December 19, 1997, alleging that the agency
had discriminated against her on the basis of reprisal for prior EEO
activity when on November 14, 1997, the agency issued complainant a letter
regarding alleged falsification on a Merit Promotion Application for the
position of GS-1601-9, Production Assistant, and notified her department
head so disciplinary action could be taken. Complainant also filed a
formal EEO complaint on October 19, 1999, alleging that the agency had
discriminated against her on the bases of race (Native American), sex
(female), age (DOB: 2/3/51), and reprisal for prior EEO activity when
her rating for the position of WD-3806-6, Aircraft Examiner (Sheet Metal
Mechanic) under Merit Staffing Announcement Number CP/99/1759/SCF was
lowered due to a re-grading of the applications, which resulted in her
application not being referred to the selecting official.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). However, on May 11, 2001, the agency filed
a Motion for a Decision Without a Hearing on both complaints. The AJ
issued a decision without a hearing, finding no discrimination.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ also concluded that complainant failed
to provide any persuasive evidence that the agency's articulated reasons
were pretext for discriminatory animus and/or retaliatory motive.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the weight of the evidence was in her favor.
The Commission's regulations allow an Administrative Judge 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, the
issuance of a decision without a hearing is not appropriate.
The Commission agrees with the AJ's conclusion that the agency articulated
legitimate, nondiscriminatory reasons for its actions. In regard to the
agency's issuance of a letter notifying complainant of falsification
of her Merit Promotion Application, and notifying complainant's
department head, the record evidence shows that complainant failed,
after three notices, to substantiate her details as a Work Leader and
GS-9, Production Assistant. In regard to re-grading complainant's
application and not referring her to the selecting official, the
record evidence shows that due to union concerns all applications
for Announcement Number CP/99/1759/SCF were re-graded by order of the
facility's Commanding Officer. The Administrative Judge concluded that
other than complainant's asserting that these actions were based on
unlawful discrimination, complainant presented no evidence from which a
reasonable fact-finder could conclude that the agency was motivated by
discriminatory animus or retaliatory motive. The Administrative Judge
thus determined that a hearing was not required because there were no
genuine issues of material fact in dispute.
Based on the foregoing, and after a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to affirm
the agency's final order, because the Administrative Judge'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 22, 2003
__________________
Date