01A21186_r
07-16-2003
Irene Homyer, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Irene Homyer v. Department of the Army
01A21186
July 16, 2003
.
Irene Homyer,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A21186
Agency Nos. AJALFO9711H0110; ALAJF09802I0100; ALAJF09803I0150;
ALAJF09806I0260
Hearing Nos. 280-99-4247X; 280-99-4248X; 280-99-4249X; 280-99-4250X
DECISION
Complainant timely initiated an appeal from the agency's final order
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 Programming Analyst at the agency's
St. Louis, Missouri facility, filed formal EEO complaints on October 2,
1997, February 17, 1998, March 19, 1998, and June 19, 1998, alleging
that the agency discriminated against her on the bases of sex (female)
and in reprisal for prior EEO activity when:
The EEO Manager stated that he would schedule complainant for an EEO
Counselor's training course after the May 23, 1997 class ended; however,
he failed to reschedule complainant for the training;
(2) Management announced GS-7, GS-9, and GS-12 positions for Information
Technologies, but did not announce any GS-11 positions;
(3) Complainant received a letter of counseling in July 1997 advising
her to follow her chain-of-command and complete all assignments in
a courteous manner, although other employees did not receive letters
after engaging in misconduct;
(4) On October 6, 1997, complainant requested information from the EEO
office, which was refused. On November 19, 1997, she was required to
ask for the information under the Freedom of Information Act (FOIA);
(5) From July 18, 1997 through February 17, 1998, complainant was
required to write a computer programs manual, while males were not
required to do documentation;
(6) On February 20, 1998, the Chief of the Quality Assurance Division
(CQA), who is outside complainant's chain-of-command, spoke to her
about an employment matter;
(7) On April 1, 1998, the agency Director violated the chain-of-command
and the Total Army Performance Evaluation System (TAPES Objectives)
procedures by not allowing complainant's input;
(8) On April 1, 1998, the agency Director made a comment in which he
called data gathering for complainant's EEO complaint a �witch hunt;�
(9) Management continued to ignore the agency's nepotism policy;
(10) During the second week of April 1998, complainant became aware that
promotional opportunities were created for some selected individuals
but not for her because no GS-11 positions were announced;
(11) On April 12, 1998, complainant's second-supervisor/Director for
Business Information Systems discussed the terms of a previous EEO
settlement agreement with complainant's first-line supervisor/Division
Chief for the Requirements Systems Division, violating the agreement's
confidentiality clause;
(12) On April 12, 1998, the Director for Business Information Systems
made a false statement to the Division Chief for the Requirements Systems
Division in an electronic mail message by stating that complainant did
not follow his advice;
(13) On May 13, 1998, complainant was denied access to data required
to process her EEO complaints; and
(14) On May 13, 1998, while reviewing a manpower document dated June
1997, complainant became aware of a vacant overhire GS-11 position,
which was not advertised.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The agency's final order implemented the
AJ's decision.
After a careful review of the record, the Commission finds that the
issuance of decision without a hearing was appropriate, as there were
no genuine issues of material fact in dispute. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence from which a reasonable fact-finder could
conclude that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected classes.<1> Accordingly, the
Commission AFFIRMS the agency's final order.
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
_July 16, 2003_________________
Date
1In so finding, we also determine that claims 2, 6, 7, 8, 9, 10, 12,
13, and 14 fail to state a claim under EEO Regulations and dismissal
of these matters is proper under 29 C.F.R. � 1614.107(a)(1).