0120102214
09-09-2010
Judy Larson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Animal and Plant Health Inspection Services), Agency.
Judy Larson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120102214
Hearing No. 430-2009-00234X
Agency No. APHIS 2008-00827
DECISION
Complainant filed an appeal from the Agency's final action dated March 26, 2010, finding no discrimination with regard to her complaint. 29 C.F.R. � 1614.405(a). For the following reasons, we AFFIRM the Agency's final action.
BACKGROUND
In her complaint, dated November 11, 2008, Complainant, a Resource Management Assistant,
GS-0303-07, in the Agency's Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine, alleged discrimination based on sex (female), age (over 40), and in reprisal for prior EEO activity when on July 21, 2008, she was given a Letter of Caution due to delinquent Government Credit Card balance.
Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 9, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final action implemented the AJ's decision. 1
ANALYSIS AND FINDINGS
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.
The Commission finds that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. In this case, the AJ determined that, assuming arguendo that Complainant had established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for the alleged issuance of Letter of Caution. Specifically, Complainant's supervisor indicated that she issued the Letter of Caution to Complainant because Complainant was delinquent in paying her balance on her Government credit card. According to the Agency's Government Travel Card Regulations, employees were obligated to repay the undisputed balance within 30 days of the statement date. The AJ noted that Complainant was 62 days delinquent in paying $745.11 balance on her Government credit card. Complainant does not dispute the foregoing statements on appeal. Upon review, we find that complainant failed to provide any evidence that the articulated reasons were pretextual or that the agency action was motivated by discrimination.
Accordingly, the Agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
9/9/10
__________________
Date
1 It is noted that the AJ noted in her footnote that on January 9, 2009, the Agency properly dismissed one of Complainant's claims concerning 2008 Performance Feedback letter dated May 12, 2008 and signed by complainant on May 15, 2008, due to untimely EEO Counselor contact, pursuant to � 1614.107(a)(2). AJ's March 9, 2010 Decision, fn. 3. Since Complainant does not contest this dismissal on appeal, and because we see no error in the agency's dismissal, we need not alter the agency's finding.
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0120102214
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013