0120092827
12-07-2009
Gwendolyn A. Pair, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Gwendolyn A. Pair,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120092827
Agency No. 06-42257-00558
Hearing No. 570-2007-00890X
DECISION
Complainant filed an appeal with this Commission from the decision of an
EEOC Administrative Judge (AJ) concerning an equal employment opportunity
(EEO) complaint alleging 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.
During the period at issue, complainant was employed as a Transportation
Assistant (Office Automation), GS-2102-07, at the agency's Temporary Duty
Assignment Section, Navy Passenger Transportation Office in Washington,
D.C.
On June 22, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to harassment and a
hostile work environment on the bases of race (African-American) and in
reprisal for prior protected activity when:
1. from August 19, 2005 until October 15, 2005, she was detailed to
the Regional Transportation Specialist Support Liaison at the Personnel
Support Detachment (PSD); and
2. on September 27, 2005, she was issued a Notice of Directed
Reassignment, effective October 16, 2005, which officially reassigned
her to PSD.
Following the investigation, complainant requested a hearing before an AJ.
On May 15, 2009, the AJ issued a decision by summary judgment in favor
of the agency. The record reflects that the agency did not issue a
final order within forty days of its receipt of the AJ's decision. As a
result, the AJ's decision became the final agency action by operation
of law, forty days after its receipt by the agency. See 29 C.F.R. �
1614.109(i).
In his May 15, 2009 decision, the AJ found no discrimination. Regarding
complainant's harassment claim, the AJ agency found that the evidence in
the record did not establish that complainant was subjected to harassment
based on prior protected activity. Specifically, the agency found that
the alleged harassment was insufficiently severe or pervasive so as to
create a hostile work environment.
The AJ noted in regard to claim 1, the Traffic Management Specialist,
also complainant's second-level supervisor (S2), stated that he selected
complainant for the detail with PSD "based on experience and seniority."
Specifically, S2 stated that complainant had worked in several offices
independently, possessed the necessary customer service experience,
had acceptable performance ratings and received no negative customer
service comments at least ninety days prior to her detail. Furthermore,
S2 stated that he found complainant to be "the most qualified to fill
the position."
Regarding claim 2, the AJ noted that S2 stated "as the Transportation
Officer with the responsibility of opening, closing and manning offices
in the Wash[ington] DC area. I was the one who selected and reassign
[complainant]." S2 stated that it was his intention to reassign
complainant formally to the position in the agency's Anacostia facility
in August 2005. Specifically, S2 stated that complainant was detailed and
not reassigned to the position in August 2005 because Anacostia unit's
"computer hook ups were not reliable" at the time. S2 stated that
complainant was later formally resigned to the position based on her
prior experience in customer service and satisfactory performance record.
On appeal, complainant argues that the AJ erred in finding no
discrimination. Complainant further argues that the AJ's decision was
"based solely on Report of Investigation/Testimony and not the facts or
evidence presented."
In response, the agency argues that complainant's appeal should be
dismissed. Specifically, the agency argues that complainant's appeal is
premature because she did not wait for a determination from the agency
before filing her appeal. The agency further argues that the AJ issued
his final decision on May 15, 2009 and that complainant filed her appeal
on June 18, 2009.
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.
As a threshold matter, the Commission notes the agency's appellate
argument that complainant's appeal is premature. Given the
circumstances of this case, i.e., the agency not issuing a final order
with within forty days of its receipt of the AJ's May 15, 2009 decision,
the Commission determines that complainant's appeal is properly before
the Commission.
Complainant, however, has offered no persuasive arguments on appeal
regarding the AJ's decision to issue a decision without a hearing,
or regarding the AJ's findings on the merits. Therefore, after a
review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final action,
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 7, 2009
__________________
Date
2
0120092827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092827
6
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