Debra L. Rivera, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A32969_r (E.E.O.C. Oct. 27, 2003)

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.