01990667
12-04-2001
Dena M. Deck, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dena Deck v. Department of the Air Force
01990667
December 4, 2001
.
Dena M. Deck,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01990667
Agency No. KHOF9604114
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. This appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that she was discriminated against on the bases
of race (Caucasian), and sex (female), reprisal (prior EEO activity)
and disability (diabetes) when she was placed on 4 hours absence without
leave (AWOL) for failing to report to work.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Budget Analyst GS-11 at the 76th Civil Engineering Group,
Kelly Air Force Base, San Antonio, Texas. Believing she was a victim of
discrimination, the complainant sought EEO counseling and subsequently
filed a formal complaint on August 13, 1996. At the conclusion of the
investigation, the complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. The complainant requested a hearing
before an EEOC administrative judge (AJ).
The AJ determined that there was no genuine issue of material fact in
dispute and issued a recommended decision without a hearing. In granting
summary judgment to the agency, the AJ concluded that the following facts
were not in dispute: 1) complainant was a member of a protected group in
that she is female, Caucasian, and had previously filed discrimination
complaints which were settled in 1994; 2) she had been on scheduled leave
beginning May 30, 1996 through June 4, 1996 and requested additional
unscheduled leave for June 5, 1996; 3) her first level supervisor (S1)
approved her request for an additional 4 hours but required that she
report for work by noon; 4) complainant failed to report to work and was
placed on annual leave for 4 hours; 5) complainant was not charged with
AWOL; 6) a written notation was placed in the complainant's personnel file
for her rude and discourteous behavior in a meeting with her supervisors.
The AJ also found that complainant is an individual with a disability
based on her diabetic condition which requires her to take medication
and causes her to be unable to tolerate stress without aggravating her
blood glucose levels and hypertension.
The AJ concluded that complainant did not establish a prima facie case
of reprisal because her last EEO protected activity took place in 1994,
2 years prior to the incident. As such, it was not enough to create a
causal connection between the agency's action and her prior EEO activity.
The AJ also concluded that complainant failed to establish an issue of
material fact that the agency's reasons for its actions were a pretext
for discrimination on any basis. In this regard, complainant admitted
that she had cursed, and �blew up� at S1 and S2. She also admitted that
S1 had told all employees to restrict their requests for unscheduled
leave due to the end of the year �close out� work that had to be done.
Finally, the AJ concluded that complainant did not request leave as
an accommodation to her disability but rather she had requested the
additional leave based on her challenge to S1 on the amount of work to
be done in the office.
In its final decision, the agency reiterated that it had established
a legitimate non-discriminatory reason for its actions and adopted the
AJ's finding of no discrimination.
On appeal, the complainant contends that there was a question of material
fact as to the date she was placed on AWOL and that the AJ had improperly
made credibility findings in accepting the agency's non-discriminatory
reasons for its actions. The agency contends that the entry of summary
judgment was proper and that the complainant failed to present a question
of fact that the agency's reasons were a pretext for discrimination.
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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
Based on the record before the Commission, we find that the AJ's entry of
summary judgment in this instance was proper. The complainant failed to
establish a material factual dispute regarding the agency's reasons for
reprimanding her for insubordinate behavior. Complainant did not dispute
that she had engaged in the behavior for which she was cited nor did she
point to evidence that others not in her protected groups had not been
reprimanded for similar conduct. We note also, that the record reflects
the complainant was charged with annual leave for the day in question
and not AWOL as she claimed in her complaint. Thus, the record did not
support her claim that she was subjected to adverse treatment in granting
her leave request. Therefore, there was insufficient evidence to raise
an inference of disparate treatment on the basis of sex, race, reprisal
or disability with respect to the issue of leave.<1> Consequently, even
when viewing the evidence in the light most favorable to the complainant,
the record did not raise a question of fact to be resolved. For these
reasons, summary judgment was appropriate.
With respect to the Rehabilitation Act, the agency does not dispute that
the complainant is an individual with a disability due to her diabetic
condition. Therefore, we need only determine whether there was an issue
raised regarding a denial of a reasonable accommodation. We find that
the complainant failed to raise a triable issue because there was no
dispute she was granted her request for leave for the time in question.
For this reason, the AJ's grant of summary judgment regarding the
complainant's claim under the Rehabilitation Act was appropriate.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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
December 4, 2001
Date
1The complainant testified that she had no available sick leave and
therefore, there was no issue regarding being charged with annual leave.