01A22840_r
07-30-2002
Karol A. Blauth, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Karol A. Blauth v. Department of the Navy
01A22840
July 30, 2002
.
Karol A. Blauth,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22840
Agency No. 00-00216-001
Hearing No. 360-AO-8492X
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a former Supply Technician,
GS-2005-06 at the agency's Naval Air Station Corpus Christi, Corpus
Christi, Texas, filed a formal EEO complaint on January 12, 2000, alleging
that she was discriminated against based on her age when after notifying
management of her intent not to retire, the following actions were taken:
(1) on September 30, 1999, she was reassigned to a less desirable
Supply Technician, GS-2005-06, position, as Item Manager for Fuel in
the Inventory Management Division;
(2) on October 5, 1999, she was assigned less significant duties in her
current position than she previously performed in the Aviation Support
Division; and
(3) on October 5, 1999, she was not afforded the promotional opportunity
to the Supply Technician, GS-2005-7, position in the Aviation Support
Division.
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. In her decision, the AJ noted that in June 1999, the
Chief of Naval Education and Training in Pensacola, Florida directed
and approved a reorganization of the agency's supply function. The AJ
further noted that the purpose of the reorganization was to consolidate
several supply functions in order to become more efficient in terms of
service and operational expense. As a result of the reorganization,
sixteen positions including complainant's position were eliminated at the
Naval Air Station in Corpus Christi, Texas. The AJ found that complainant
declined the agency' s Voluntary Separation Incentive Pay (VISP) and
Voluntary Early Retirement Authority (VERA) offers and was assigned to
another Supply Technician, GS-06 position that was saved in another unit.
The AJ concluded that complainant established a prima facie case
of age. The AJ further concluded that the agency provided legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination/retaliation.
In reaching this conclusion, the AJ found that with respect to provision
(1), the agency's Management Analyst stated that she was assigned to
insure that the new organizational structure was accomplished and that the
realignment of positions was accomplished without any names or personal
information attached to the realigned positions. The management analyst
further stated that after the positions were realigned, she learned of
the affected employees by name and there was no information concerning
their ages. With respect to complainant's claim that her reassignment
was based on discrimination and that her new position was created to
"...make her miserable so that she would resign," the AJ determined that
there was no evidence supporting complainant's claim.
As to provision (2), the AJ found that complainant's duties changed as
a result of the realignment. Specifically, complainant's third level
supervisor and Commander of the Inventory Management Division and the
Aviation Support Division stated that complainant 's duties changed as a
result of the realignment and that her new first line supervisor reduced
complainant's initial job duties in an attempt to assist her with the
transition to the new position.
With respect to provision (3) and complainant's allegation that her
previous Supply Technician, GS-06 position was upgraded to Supply
Technician, GS-07 and that she was discriminated against when she
was not placed in that position, the AJ found no evidence to support
complainant 's contentions. The AJ concluded that the evidence in the
record showed that the realignment involved abolishing several positions
including complainant's and consolidating certain functions into other
positions. Further, the AJ concluded that the record reflects that two
supply technician, GS-07 positions replaced the four abolished Supply
Technician, GS-07 positions and that complainant was not allowed to
apply for the Supply Technician, GS-07 position because it was not a
promotional opportunity.
The agency's final order implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. 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 that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected class. The agency final action implementing
the AJ's finding of no discrimination is therefore 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
July 30, 2002
__________________
Date