0120070973
05-23-2007
Joy Saunders, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Joy Saunders,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070973
Hearing No. 531-2006-00006X
Agency No. 05057000745
DECISION
On December 8, 2006, complainant filed an appeal from the agency's
November 17, 2006, final order concerning her 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission affirms the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated
against complainant on the bases of race (African-American) and age
(D.O.B. 08/10/56) when her position as Assistant Club Manager was
abolished and she was terminated, effective March 28, 2005.
BACKGROUND
Complainant worked as an Assistant Club Coordinator, GS-1101-03, for
the agency's Department of Morale, Welfare and Recreation (MWR) at the
Norfolk Naval Shipyard, Drydock Club in Portsmouth, Virginia. She was
terminated, effective March 28, 2005, when her position was abolished.
On May 25, 2005, complainant filed an EEO complaint claiming that the
agency discriminated against her as stated above. At the conclusion
of the agency's investigation, complainant was provided with a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested
a hearing. Over complainant's objections, the AJ assigned to the case
granted the agency's May 4, 2006 motion for a decision without a hearing
and issued a decision without a hearing on October 18, 2006.
The AJ made the following findings of fact: From May 2003 through
December 31, 2004, complainant was responsible for running the Drydock
Club (the Club); however, she was not formally promoted to manager. On
January 1, 2005, the agency hired a Hub Manager (the Manager)(Caucasian,
D.O.B. 8/24/62) to manage the Club, and she served as complainant's
supervisor. Thereafter, the Manager developed a Business Based Action
(BBA) which resulted in the removal, downgrade or furlough of various
employees. Specifically, complainant's position and the positions of four
others1 were abolished, and new positions were established at the Club.
Employees affected by the BBA received a general notice, which had
to be issued at least 24 hours prior to the specific notice, which
contained specific information for each employee, such as eligibility
for severance and retirement benefits. An employee could waive the
24 hour notice period if they chose to do so. On February 25, 2005,
the agency issued complainant the general notice, and she chose to wait
to receive the specific notice. Complainant returned on March 2, 2005,
to receive her specific notice.
On February 22, 2005, the agency announced a full-time position
of Catering Sales Specialist, NF-3, which was at the same grade as
complainant's former position. The agency delayed filling the new
positions until the BBA-affected employees received notices regarding
their positions. In relevant part, the Manager wrote a February 25,
2005 note on the staffing certificate for the Catering Sales Specialist
position, stating "Please do not process until we see if there are
any applications from our BBA's." On March 4, 2005, the agency filled
the Catering Sales Specialist position with an applicant who was not
BBA-affected.2 Neither complainant nor DB applied for any positions
with the Club. Complainant, however, did apply for an Assistant Club
Coordinator position at the Joint Forces Staff College. She was not
selected, but she did not have a hiring preference for this position,
and the Manager was not the selecting official.
Based upon the aforesaid facts, the AJ issued a decision, finding no
discrimination. The AJ found that complainant failed to establish a prima
facie case of race or age discrimination. She then assumed arguendo that
complainant established a prima facie case of discrimination, but found
that the agency articulated legitimate nondiscriminatory reasons for its
action. Specifically, the BBA was initiated to increase catering revenue,
and to staff the Club to support remote food and beverage facilities;
complainant's position was thus abolished; and complainant failed to
apply for a new position. The AJ then determined that complainant
failed to establish that the agency's reasons were pretext. First,
she noted that, although complainant identified her former supervisor
as being responsible for the action, the record reflected that BBA was
initiated by the Manager and approved by another member of management.
Second, the AJ found irrelevant complainant's argument that the
Manager was involved at an incident at another club, and thus became
the manager at the Drydock Club. Finally, while complainant contended
that the agency failed to tell her in a timely manner that her position
was being abolished, the AJ found the argument without merit because
complainant received her general notice at the same time or before her
coworkers, she chose not to waive the 24 hour requirement for issuance
of the specific notice, and she waited several days before returning
for the specific notice, despite saying she would return the next day.
Finally, the AJ noted the Manager's February 25, 2005 note, directing
the Personnel Office not to fill the Catering Sales Specialist before
those subject to the BBA had an opportunity to apply.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant appealed from the agency's decision.
On appeal, complainant argues, among other things, that the AJ incorrectly
identified the facts of this case. Specifically, she maintains that
the BBA only affected five employees, and she was the only one to loose
her job. Complainant further asserts that the AJ incorrectly identified
the applicable dates, which resulted in the incorrect conclusion.
She presented the dates as follow: February 24, 2005 - Catering Sales
Specialist applicant interviewed and indoctrinated; February 25, 2005 -
complainant provided with general notice, and Catering Sales Specialist
applicant hired; February, 28, 2005 - applicant begins position; March
2, 2005 - complainant provided with specific notice. In response,
the agency contends that complainant's nonselection for the Catering
Sales Specialist position is not the claim of the subject complaint.
Inasmuch as complainant has set out a timeline that differs from that
set forth in the report of investigation, the agency argues that her
dates are inaccurate. Specifically, it notes that the applicant was
entered into computer as hired on March 1, 2005, and was not in paid
status until March 4, 2005. The agency further notes that complainant's
separation did not become effective until March 28, 2005.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999) (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is
not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Moreover, we find that the AJ properly issued a decision without a hearing
because complainant has failed to show that a genuine issue of material
fact exists. Although complainant asserts that AJ incorrectly identified
the facts, we disagree. The record reflects that the BBA increased
catering revenue and allowed the Club to support remote locations, facts
which complainant does not dispute. Moreover, of the five employees who
were separated from the agency due to the BBA, the three who applied
for other positions with the Club were selected for said positions.
Complainant, however, never applied for any position with the Club.
Although complainant argues that the Catering Sales Specialist applicant
was hired on February 25, 2005, the record reflects that the Manager wrote
a note on the staffing certificate for the position, stating "Please do
not process until we see if there are any applications from our BBA's."
Finally, we note that complainant delayed until March 2, 2005 to return
to the agency for her specific notice, and that the applicant was not in
paid status until March 4, 2005. For the foregoing reason, we concur with
the AJ's determination and find that summary judgment was appropriate in
this case. Based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we affirm
the agency's 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
_____5/23/07______________
Date
1The four others were CW (D.O.B. 1/5/1934); TG (D.O.B. 2/17/1984); DR
(D.O.B.11/22/1981) and DB (D.O.B. 8/5/1944). All of these employees
are African-American.
2Three BBA-affected employees, CW, TG and DR, all applied for new
positions with the Club and were selected.
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0120070973
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070973