01a50451
03-04-2005
Linda S. Ashwood, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Linda S. Ashwood v. Department of the Army
01A50451
March 4, 2005
.
Linda S. Ashwood,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A50451
Agency No. ARCELOU02MAY0007
Hearing No. 240-A3-05068X
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 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 accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that, during the relevant period, complainant
was employed as a GS-560-12, Budget Officer at the agency's Corp of
Engineers facility in Louisville, Kentucky. Complainant filed a formal
EEO complaint on July 25, 2002, alleging that the agency subjected her to
a hostile work environment based on sex (female) and age (DOB: 7/8/41)
commencing around or about 1999 and when, on her April 2000 performance
evaluation, she received a level two rating.
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.
The AJ concluded that complainant failed to establish a prima facie
case of sex and age discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated differently under similar
circumstances. The AJ also concluded that complainant failed to establish
a prima facie case of harassment because the record lacked specific,
probative evidence that the complained of incidents of harassment were
motivated by her sex and/or age.
The agency's final order implemented the AJ's decision. On appeal,
complainant basically restates arguments previously made in the record.
The agency did not file a response.
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
The AJ concluded that other than complainant's own subjective belief
that she was discriminated against, she presented no evidence from which
a reasonable fact-finder could conclude that the agency discriminated
against her on the bases of sex and age or subjected her to a hostile
work environment. The AJ thus determined that a hearing was not required
because there were no genuine issues of material fact in dispute.
The Commission agrees with the FAD's conclusion that complainant did not
establish that she was discriminated against on the bases of sex and age.
Specifically, the record evidence does not establish that complainant
was treated less favorably than individuals similarly situated, but
not within her protected groups. Moreover, there is no other probative
evidence from which such an inference of discrimination can be drawn.
Under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), complainant's claim of hostile work environment must fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6
(March 8, 1994). A prima facie case of hostile work environment is
precluded based on our finding that complainant failed to establish
that any of the actions taken by the agency were motivated by her sex
and or age. See Oakley v. United States Postal Service, EEOC Appeal
No. 01982923 (September 21, 2000).
Based on the foregoing, and after a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to affirm
the agency's final order, because the Administrative Judge's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.
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
March 4, 2005
__________________
Date