01A11089
04-18-2002
Maria E. Longoria, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Maria E. Longoria v. Department of Air Force
01A11089
April 18, 2002
.
Maria E. Longoria,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A11089
Agency No. AL900010155
Hearing No. 360998567X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the bases of sex (female) and reprisal
(filing prior EEO complaints) when her supervisor (S1) notified her that
her Temporary WG-7009-7 Equipment Cleaner appointment was not renewed.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that, at all relevant times, complainant was employed
by the agency in a temporary appointment as an Equipment Cleaner at
the Industrial Process Branch, Engine Production Division, Propulsion
Management Directorate, San Antonio Air Logistic Center in San Antonio,
Texas. After her appointment was not renewed, she filed a formal EEO
complaint with the agency on April 15, 1998, alleging that the agency
had discriminated against her as referenced above. 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 established a prima facie case of sex
discrimination and reprisal. The AJ further concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that complainant's employ was subject to termination
at any time without adverse action or reduction in force and the
temporary appointment was not to exceed one year. The AJ found that
complainant presented no evidence to suggest that this explanation was
a pretext for a retaliatory motive, and concluded that she failed to
raise a genuine issue of material fact as to whether she was subjected
to discrimination. In reaching this conclusion, the AJ considered
complainant's argument that three of her male co-workers also received
notices that their appointments were going to expire, but at the last
minute, their temporary appointments were extended. The AJ found,
however, that the inference of discrimination was negated by evidence of
record that one male co-worker's temporary appointment was not renewed.
The AJ found that complainant produced no evidence to indicate that
S1 had a discriminatory animus toward her. Additionally, the AJ noted
that complainant failed to appear for her scheduled interview with the
investigator in the instant case, and gave no statement regarding her
position. Complainant also failed to answer and return interrogatories.
Because of complainant's actions, the AJ drew an adverse inference and
concluded that no evidence to indicate pretext exists. The agency's
final decision implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final
decision.
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.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established her prima facie case
of sex discrimination and reprisal, the Commission turns to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
Upon review of the record, the Commission finds that the agency did not
extend complainant's appointment because she had been on limited duty
and unable to perform the full duties of her WG-7009-7 position since
July 1997, and S1 did not believe that complainant would be able to
perform the full range of duties required during any new appointment.
See Record of Investigation (ROI), Exhibit F(2), p. 3-5. Upon review
of the record, the Commission finds that the agency has articulated a
legitimate, nondiscriminatory reason for its action.
The burden returns to complainant to show that the agency's reasons were
pretext for discrimination. Complainant indicated that three of her male
co-workers, whose appointments were to expire when hers did, had their
temporary appointments extended. However, the record also indicates that
one male co-worker's appointment was not extended. See ROI, Exhibit
F2, p. 2, Exhibit F12, p. 68. Additionally, the record indicates that
complainant failed substantially to cooperate in the discovery process.
See ROI, Exhibit F16, p. 88. EEOC regulations provide that, where a
party fails without good cause shown to respond fully and in a timely
fashion to the AJ's order and/or the party has not otherwise cooperated
in the discovery process, the AJ may impose sanctions. The AJ may: (i)
draw an adverse inference that the requested information, or the testimony
of the requested witnesses, would have reflected unfavorably on the party
refusing to provide the requested information; (ii) consider the matters
to which the requested information or testimony pertains to be established
in favor of the opposing party; (iii) exclude other evidence offered by
the party failing to produce the requested information or witness; (iv)
issue a decision fully or partially in favor of the opposing party; or (v)
take such other actions as appropriate. 29 C.F.R. � 1614.109(f)(3). "Other
actions" may include dismissal pursuant to 29 C.F.R. � 1614.107(a)(7),
1614.109(b) (1999). See Koch v. Securities and Exchange Commission, EEOC
Appeal Nos. 01A04600, 01A05012, 01A01083, (December 21, 2001). Therefore,
the AJ's adverse inference in favor of the agency was appropriate.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as complainant has failed to raise a
genuine issue of material fact as to the agency's reason for its actions.
We find that the AJ's decision properly summarized the relevant facts
and referenced 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 classes.
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 18, 2002
__________________
Date