01a40014
04-20-2005
Janice J. Peterson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Janice J. Peterson v. Department of the Navy
01A40014
April 20, 2005
.
Janice J. Peterson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40014
Agency No. 02-00158-002
Hearing No. 170-A3-8275X
DECISION
Complainant appeals to the Commission from the agency's August 22, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of age (date of birth: June 2, 1950) and disability (right
foot fracture), when: (1) on May 29, 2001, she was informed that her
part-time position, Waitress, NA-7420-03 (with benefits), would be changed
to a �flex� position (without benefits), effective June 11, 2001, and;
(2) complainant, because of the change, was forced to resign on June
8, 2001. After an investigation and without holding a hearing, an
EEOC Administrative Judge (AJ) issued a decision dated July 14, 2003,
finding no discrimination. The AJ found that complainant failed to
present a prima facie case of age or disability discrimination. The AJ
further found that assuming complainant presented a prima facie case,
the agency presented a legitimate, nondiscriminatory reason for its
actions which complainant failed to adequately rebut. Specifically,
the AJ found that the agency took the action to change complainant from
part-time to flex based on a monetary loss. The agency, by decision
dated August 22, 2003, fully implemented the AJ's decision.
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.
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).
The record indicates that complainant, during the relevant time, was
working as a waitress at the Orion Club, part of the Department of Morale
Welfare and Recreation at the Naval Air Station, Joint Reserve Base in
Willow Grove, Pennsylvania. The record indicates that the Orion Club
was required to make a 5% profit. However, the Orion Club was losing
money and was in the �red flag status.� The record indicates that
headquarters required the Orion Club make changes to generate profit.
Thus, some positions and benefits were eliminated. Thus, we find that
the agency presented a legitimate, nondiscriminatory reason for changing
complainant's position, which complainant failed to rebut.
With regard to complainant's resignation, we find no discrimination.
According to complainant's June 8, 2001 resignation letter, she resigned
�[d]ue to Business Based Action change in [her] employment category,
the removal of benefits and reduction of pay.� Complainant has failed to
show that the resignation is in any way related to her age or purported
disability.
We find no genuine issue of material fact in dispute. Further, we find
that complainant has not shown, by a preponderance of the evidence, that
she was discriminated against on the bases of age or disability. We make
this determination without making a finding as to whether complainant
is an individual with a disability under the Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
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
April 20, 2005
__________________
Date