01A32969_r
10-27-2003
Debra L. Rivera, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Debra L. Rivera v. Department of the Army
01A32969
October 27, 2003
.
Debra L. Rivera,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A32969
Agency No. BODNFO0104B0190
Hearing No. 140-A2-8074X
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. 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 complainant, a Supervisory Medical Clerk at
the agency's Womack Army Medical Center in Fort Bragg, North Carolina,
filed a formal EEO complaint on April 23, 2001, alleging that the agency
discriminated against and harassed her on the basis of sex (female)
and in reprisal for prior EEO activity when:
(1) On April 12, 2000, the agency issued complainant a proposed letter
of reprimand;
On May 9, 2000, the agency issued complainant written counseling in
lieu of the letter of reprimand;
On February 14, 2001, the agency issued complainant a notice of proposed
suspension for thirty days; and
From September 1999 through April 2001, the agency required complainant
to be on call for 16 hours per day without compensation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed to
establish a prima facie case of harassment because she failed to present
evidence from which an inference of sex or reprisal discrimination
could be inferred for any of the actions.<1> The agency's final order
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, the issuance of
a decision without a hearing is not appropriate. In the context of
an administrative proceeding, an AJ may properly consider issuing a
decision without a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
In this matter, we find that the issuance of a decision without a
hearing was appropriate. We note that complainant failed to provide
any evidence that a similarly situated comparative male employee was
treated more favorably than she under similar circumstances nor any other
evidence from which an inference of sex-based discrimination could be
inferred. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Regarding complainant's reprisal claim, we note that complainant failed
to present any evidence that responsible management officials knew of her
first visit to an EEO office on February 22, 2001 or her meeting with
an EEO Counselor on March 15, 2001. See Whitmire v. Department of the
Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Moreover,
we note that all of the matters in complainant's complaint occurred
before complainant's EEO activity; therefore, we find that complainant
failed to raise an inference of reprisal for her complaint.<2>
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), complainant's claim of harassment must fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6
(March 8, 1994). A prima facie case of harassment is precluded based on
our finding that complainant failed to establish that any of the actions
taken by the agency were motivated by her sex or prior protected activity.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
Therefore, after a careful review of the record, the Commission finds
that the issuance of a decision without a hearing was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to be
most favorable to complainant, we note that complainant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected classes. The agency's final order
is hereby 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
_October 27, 2003_________________
Date
1We further note that the AJ stated that she claims 1 -3 could be also
dismissed procedurally for failure to state a claim under a disparate
treatment analysis if viewed as separate claims. However, the AJ
nonetheless analyzed claims 1 - 3 on the merits as part of an ongoing
harassment claim.
2We note that there is no evidence or claim that complainant engaged in
any type of EEO activity before February 22, 2001.