Dena M. Deck, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 4, 2001
01990667 (E.E.O.C. Dec. 4, 2001)

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.