0120113083
01-23-2013
Divonne M. Hargett, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Divonne M. Hargett,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113083
Hearing No. 530-2009-00156X
Agency No. 08-00189-01056
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 27, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supply Technician, GS-2005-06, at the Agency's Fleet and Industrial Supply Center in Norfolk, Virginia.
On May 2, 2008, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when1:
1. from June 19, 2003 to February 16, 2008, management failed to provide her with an accurate position description (PD);
2. on March 14, 2008, management issued her another inaccurate PD; and
3. management delayed a promotional opportunity for her with a new agency, by providing incorrect contact information to that agency's Human Resource Department.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 12, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant did not establish a prima face case of race, sex, and reprisal discrimination. The AJ further found that assuming arguendo Complainant established a prima facie case of race, sex, and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that from January 14, 2001 to February 16, 2008, Complainant worked as a Supply Technician, GS-2005-06, at various locations, including the Navy Public Works Center and Naval Facilities Command. The AJ further noted that since June 2003, as a Supply Technician, GS-2005-06, Complainant began performing fuel inventory management duties. These duties included placing, certifying and receipting fuel orders. The AJ noted that from June 2003 until March 2008, Complainant asked management for a position description to reflect the changes in her duties and responsibilities as a Supply Technician.
The AJ noted that on or around November 13, 2007, Complainant provided her second-line supervisor with a detailed list of the duties and responsibilities she was performing as a Supply Technician. On February 17, 2008, Complainant was promoted to a Supply Technician, GS-2005-07. On March 14, 2008, the Agency provided Complainant with a position description for a Supply Technician Purchasing Agent, GS-7.
On October 15, 2008, Complainant was hired into a new position, with another Federal agency: the National Park Service under the Department of Interior. On October 17, 2008, Complainant sent an email to the Agency's Human Resources for a release date to start her new position and was informed that her new employer should contact the Agency's Human Resources Department for a release date. On November 4, 2008, Complainant's second-line supervisor sent an email to Complainant informing her that her release date was November 22, 2008.
The AJ noted that the Agency made several attempts to address Complainant's concerns regarding her inaccurate position description. The AJ noted in his declaration, Complainant's second-line supervisor stated that after Complainant informed him that her position description did not include fuel management duties, he instructed her to submit a draft position description for classification review by Human Resources. The second-line supervisor further stated that Complainant "chose to identify the draft she submitted as FUEL INVENTORY MANAGEMENT SPECIALIST. I submitted the draft, without edits, and for classification purposes the advisory came back identified as a GS-2005-07 SUPPLY TECHNICIAN. I shared the results of the evaluation and the detailed narrative grade determinations with [Complainant] so she understood the basis for the classification. [Complainant] immediately responded that the PD was incomplete and additional duties needed to be included which she offered [emphasis in its original]."
The second-line supervisor stated that he then sent the position description back to Human Resources for a second advisory classification, including the additional information provided by Complainant. The second-line supervisor stated, however, that Human Resources maintained that Complainant's position description should remain classified a Supply Technician, GS-2005-07.
Complainant's also claimed that the Agency failed to provide her with the correct contact information to confirm a release date. The second-line supervisor stated "I do not believe that I provided any incorrect information to [Complainant] pertaining to her changing of employers." The second-line supervisor stated that Complainant's release date of November 22, 2008 was "the date requested by Department of Interior." The second-line supervisor further stated that Complainant's new employer requested that the release date to be November 22, 2008 and "I was amenable to their request."
Complainant's other supervisor stated that Complainant was placing fuel orders prior to his becoming Complainant's supervisor. The supervisor further stated that at that time he was not aware that Complainant's duties had increased "however, I was told, not sure when, that her job duties had been changed from what she was previously doing well in advance of my arrival. As I understood it, she gained fuel ordering related duties at the same time as losing other responsibilities. I have no first hand knowledge of the background that led to her performing fuel duties."
Further, the supervisor stated that during the March 2008 period, Complainant was a Supply Technician, GS-6, as the rest of the Supply Technicians in her work unit, and they were all under the same position description. The supervisor further stated that the position description was rewritten "to reflect additional training requirements and responsibilities and the Supply Technicians were promoted to GS-07s. As [Complainant] had the same PD, she was promoted to a GS-07 Supply Technician with the rest of her work unit. Upon being promoted, she submitted an EEO complaint because the new PD she had received did not reflect ordering fuel responsibilities. Her PD was rewritten and reclassified, grading out at the Supply Technician level, and she was put under the new accurate PD as a GS-07."
The supervisor stated that Complainant was not discriminated against based on race, sex and retaliation. Moreover, the supervisor stated that he felt that Complainant was frustrated "because she believes she has been performing work at a higher level."
The Supervisory Human Resources Specialist (Specialist) stated that Complainant's release date was set for November 22, 2008 because the request from a named National Park Servicesofficial "was not received until Monday, 3 November [2008]. November 23 [2008] was the date requested by [named National Park official] to effect the action." The Specialist stated that Complainant "could have been and was released within 5 days of receiving the official call from the National Park Service asking for the release date."
Complainant, on appeal, argues that the Agency's actions made her feel "isolated, targeted and afraid. I was upset, confused and scared as to why the Agency made me wait five years for a PD I was entitled to and would then issue me an incorrect PD for a job that I did not perform. I had assisted the Agency in complying with their requests, even so far as to writing my own PD, and providing it to [second-line supervisor] not as an inclusion or as an addition to any other PD, but to be used as the Agency implied, for a Fuel IM GS-09 position."
Finally, Complainant argued that her PD was "never, at any time, reviewed or discussed with me by anyone at the Agency, and was not used at this time, to provide me a PD that reflected the work I performed."
The instant appeal followed.
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. 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
After careful review of the record and consideration of the arguments on appeal, we find that Complainant has not identified genuine issues of material fact in this case which can only be resolved through a hearing. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment.
Accordingly, 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 unlawful discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 23, 2013
__________________
Date
1 The record reflects that Complainant later amended the instant complaint by adding reprisal as a basis.
2 On appeal, Complainant does not challenge the June 20, 2008 partial dismissal issued by the Agency regarding another claim (that she was discriminated against on the bases of race and sex when on May 6, 2008, she was harassed by a named employee). Therefore, we have not addressed this issue in our decision.
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0120113083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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