01991777
04-03-2002
Linda Davis, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Linda Davis v. Department of Housing and Urban Development
01991777
April 3, 2002
.
Linda Davis,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01991777
Agency No. FW-96-23
Hearing No. 310-98-5040X
DECISION
Complainant filed a timely appeal from an agency final action dated
November 16, 1998, finding no discrimination regarding her complaint of
unlawful employment discrimination. The Commission accepts the appeal
pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Program Assistant, Single Family,
REO Branch, in the agency's Fort Worth, Texas office, filed a formal EEO
complaint dated April 29, 1996. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of race (White)
and sex (female) when she was issued a Letter of Reprimand on February
26, 1996.
The record reveals that on November 20, 1995, complainant had a
verbal altercation with a security officer in the building where she
was employed. On February 26, 1995, complainant was issued a Letter
of Reprimand by her supervisor (S1) for initially refusing to follow
requested security measures and for using obscene language when talking
to the security officer.
At the conclusion of the complaint investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that no material facts were in dispute, and issued a
summary judgment decision. The AJ found that complainant failed to
establish a prima facie case of race or sex discrimination because
she failed to identify a similarly situated employee outside of her
protected classes who was treated more favorably. The AJ determined
that the two comparatives (C1 and C2) identified by complainant were
not similarly situated because (1) neither is outside of complainant's
protected classes; (2) complainant's first line supervisor did not
supervise either of the comparatives; (3) the circumstances surrounding
the reprimand of C1 involved using vulgar language in the workplace;
(4) C2 never received a suspension due to her superior's death; and
(5) neither the incident involving C1 nor that involving C2 concerned
an effort to circumvent the heightened security measures following the
Oklahoma City bombing in which agency employees were severely impacted.
Additionally, the AJ found that the agency articulated a legitimate,
non-discriminatory reason for issuing complainant the Letter of Reprimand.
Specifically, the AJ found that complainant's supervisor officially
reprimanded complainant because she initially refused to comply with a
building security officer's instructions and directed abusive language
at the officer. The AJ noted that the first line supervisor, who
had not previously issued any reprimands, acted with the approval of
the second level supervisor. The AJ cited the report prepared by the
security officer in response to the incident as providing the basis for
the Letter of Reprimand.
The agency adopted the AJ's decision in its final action issued November
16, 1998.
On appeal, complainant argues that the AJ erred in issuing a summary
judgment decision. Complainant states that management routinely permitted
other employees to enter and leave the building without passing the
entry point. She argues that since there was no set security policy
in effect at the time of the November 20, 1995 incident, she endured
a different standard than others entering the building at that time.
She argues that the statements made by her second level supervisor that
the security officer reported that she �bypassed� the metal detector
and directed profanity at the officer are both inaccurate. Complainant
cites the statement made by her first level supervisor that she set the
detector off when she initially went through it as the correct details
of the incident. Complainant also states that the profanity she used
on the day of the incident was a general statement not directed at
the security officer. Complainant argues that the discrepancy of the
event by the two supervisors should shift the burden to the agency.
Complainant also states that profanity is routinely used at the agency's
Forth Worth location and argues that the agency's selective discipline
of her is unfair and discriminatory.
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.
Upon review, we find that there are no genuine issues of material
fact in this case, and that the AJ properly issued a summary judgment
decision without holding a hearing. With regard to complainant's
claim that discrepancies existed in the statements made by the first
and second line supervisors, we find that the alleged discrepancies are
not material to the ultimate determination in this case. Specifically,
we note that complainant does not dispute that she initially refused to
follow the officer's order to enter the metal detector and used obscene
language when talking to the security officer. Accordingly, we find
that summary judgment was appropriate in this case.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Reeves v. Sanderson Plumbing Products, Inc.,
120 S.Ct. 2097 (2000); the Commission concurs with the AJ's finding
that complainant did not establish a prima facie case of discrimination
based on race or sex because she failed to demonstrate that an employee
outside of her protected classes was treated more favorably under similar
circumstances. The Commission agrees with the AJ's conclusion that
the two comparatives cited were not similarly situated to complainant.
We also find that complainant failed to present any other evidence
from which an inference of discrimination could be drawn. Accordingly,
the agency's final action 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 3, 2002
__________________
Date