01A20129
10-24-2002
Doris D. Rountree, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (U.S. Customs Service), Agency.
Doris D. Rountree v. Department of the Treasury
01A20129
October 24, 2002
.
Doris D. Rountree,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(U.S. Customs Service),
Agency.
Appeal No. 01A20129
Agency Nos. 95-2240, 99-2300
Hearing No. 160-A0-8222X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) 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 Customs Inspector at the agency's
U.S. Customs Service, Office of Field Operations, in San Juan, Puerto
Rico, filed formal EEO complaints on May 25, 1995,<1> and June 16, 1999,
alleging that the agency had discriminated against her and harassed her
on the bases of national origin (Panama) and sex (female) when:
the agency suspended her for seven days, beginning on January 23,
1995 for modifying her customs firearm;
management at the Puerto Rico facility prevented her from being selected
to positions at other duty stations from 1993 to 1995;
Agency Chief Inspector (ACI) harassed her on April 9, 1999, by accusing
her of submitting fraudulent information on a travel voucher; and
the agency denied her the opportunity to attend an Office of Foreign
Assets Control training on April 27 and 28, 1999.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Prior to the hearing, the agency submitted a Motion for
Summary Judgment. Complainant filed a response to the motion. The
AJ issued a decision without a hearing, finding no discrimination on
February 14, 2001.
The AJ found that complainant failed to provide sufficient evidence
to warrant further fact-finding in the case. In regards to (1),
the AJ found the undisputed facts in the record to show that in June
1993, the agency issued complainant a pistol which had been inspected
and never been used previously. At an agency-sponsored quarterly
firearms-qualification course, on November 11, 1993, complainant's
gun failed to function properly. An investigation followed and it was
determined that complainant had her pistol altered without authorization
in violation of agency policy. As a result, complainant was suspended.
The AJ concluded that complainant failed to proffer evidence sufficient to
establish a prima facie case of national origin and sex discrimination,
noting that she failed to demonstrate that similarly-situated employees,
not in complainant's protected classes, were treated differently under
similar circumstances.
In regards to (2), the AJ found that complainant failed to proffer
evidence in support of her allegations of interference by management in
her attempts to transfer to other duty stations. The AJ found that none
of the selecting officials for the positions to which the complainant
applied, spoke to any of complainant's supervisors in Puerto Rico.
Additionally, the AJ found that the allegations consisted of mere
speculation and subjective opinion that did not rise to a factual level
which would allow a trier of fact to conclude that complainant was
subjected to discrimination.
At to (3), complainant alleged that the ACI accused her of committing
fraud on a travel voucher for her trip to Montreal, Canada. The AJ relied
upon the undisputed facts including that complainant submitted a voucher
reporting expenses contrary to agency policy or improperly categorized.
Complainant was repeatedly asked to fix her expense report to include
only those expenses that she was entitled to recover. The AJ found that
complainant failed to proffer evidence sufficient to establish a prima
facie case of discrimination, noting that she proffered no evidence
demonstrating that similarly-situated employees, not in complainant's
protected class, were treated differently in similar circumstances.
In regard to (4), the AJ determined that, assuming arguendo, complainant
established a prima facie case of discrimination, the agency offered a
legitimate, non-discriminatory reason; namely, that there were a limited
number of slots available for training on those days and the agency did
not originally schedule several inspectors. The agency's final order
implemented the AJ's decision.
On appeal, complainant contends that the AJ engaged in improper
ex parte communications with the agency in violation of 29 C.F.R. �
1603.204. Complainant alleges that the AJ and the agency entered into
a "settlement." The agency contends that the communications between
the AJ and the agency were limited to procedural matters concerning
the necessity of obtaining the agency's witnesses who work and reside
outside of the region. As such, the agency restates its position it
took in its FAD and requests that we affirm the FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). The Commission's regulations allow an AJ to issue a decision
without a hearing when he 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.
To prevail in disparate treatment claims such as these, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that she
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). In order to establish a
prima facie case of discrimination based on sex and/or national origin,
complainant must show that she is a member of a protected group and that
she was subjected to an adverse employment action. Packard v. Department
of Health & Human Serv., EEOC Appeal Nos. 01985494, 01985495 (March 22,
2001). She must also show either that she was treated less favorably than
other similarly situated employees outside of her protected group, id., or
must present other, non-comparative evidence which supports an inference
that the agency was motivated by unlawful discrimination. See O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, at n.4 (September 18, 1996). Additionally,
remarks or comments unaccompanied by concrete agency action are usually
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996).
We find that summary judgment was proper because complainant failed to
establish a prima facie case of discrimination on the basis of national
origin or sex for each allegation. With regard to (1), complainant did
not present probative evidence that the suspension she incurred was
under circumstances that would support an inference of discrimination.
As to (2), the Commission also agrees with the AJ's conclusion that
complainant's bare assertions did not constitute evidence sufficient to
establish a prima facie case that management at the Puerto Rico facility
interfered with her attempts to get positions in other jurisdictions.
Indeed, the record reflects that complainant was offered a position in
Miami during the relevant time period, which she rejected. Complainant
does not dispute this. In regards to (3), complainant does not establish
that she was subjected to concrete actions or that the terms, conditions,
or privileges of her employment were otherwise effected. As to (4),
complainant failed to proffer evidence sufficient to establish a prima
facie case when she and several others were not originally assigned to
a training session which they ultimately attended.
To establish a claim of harassment based on national origin, race, sex,
disability, age, or reprisal, complainant must show that: (1) she is
a member of the statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Complainant has not provided probative evidence to demonstrate that she
was harassed based on her sex or national origin. Therefore, complainant
failed to establish a prima facie case of harassment.
The complainant's allegations regarding the improper ex parte
communications between the AJ and the agency's representatives is also
without merit. The record reveals that purpose of the communication
between the AJ and the agency representatives was to inform the agency
that he was summarily dismissing the case and, thus, their witnesses
would not need to appear for the hearing. At that point, the AJ had
already contacted complainant to inform her of this decision. We note
that an AJ has wide latitude in conducting the hearing. 29 C.F.R. �
1603.202. Complainant has failed to produce even a scintilla of evidence
that the AJ's conversations with the agency improperly affected his
conclusions. See, Higbee v. United States Postal Service, EEOC Appeal
No. 01A12046 (July 10, 2002), or that the AJ abused his discretion beyond
the scope permitted by 29 C.F.R. � 1603.202.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We discern that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Furthermore, construing the evidence to be most favorable
to complainant, we find that a reasonable trier of fact could not find
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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 24, 2002
__________________
Date
1 The Commission previously addressed various procedural issues concerning
the instant complaints. See Rountree v. Department of Treasury, EEOC
Appeal Nos. 01956741 (June 14, 1996) and 01972838 (April 30, 1998).