Joy Saunders, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 23, 2007
0120070973 (E.E.O.C. May. 23, 2007)

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