01a03617
03-29-2001
Martha C. Daniels, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Martha C. Daniels v. Department of the Army
01A03617
03-29-01
.
Martha C. Daniels,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A03617
Agency No. BXJCF09608G0600
Hearing No. 100-99-7705X
DECISION
INTRODUCTION
On April 4, 2000, Martha C. Daniels (complainant) initiated an appeal to
the Equal Employment Opportunity Commission (EEOC or Commission) from
the final decision of the Department of the Army (agency), concerning
her 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.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of sex, age (D.O.B. 7/25/49) and reprisal (Letters
to her Congressman and the Inspector General) when the agency denied her
right to register in the Priority Placement Program (PPP) in April 1995,
although she was eligible for registration in January 1995.
BACKGROUND
Complainant, a Transition Services Specialist, GS-301-11, worked in
the 100th Area Support Group with the Army Career and Alumni Program
(ACAP) in Hohenfels, Germany, from November 1991 through June 1996.
In a March 1995 memorandum, complainant's supervisor informed the
Civilian Personnel Office that complainant's position was slated for
abolishment effective October 1, 1995. Complainant was granted leave
without pay (LWOP) status in April 1995, but was not eligible for the
PPP registration at that time. On April 1, 1996, complainant returned to
her position with ACAP. Complainant received a Notice of Separation Due
to Reduction in Force (RIF), dated April 18, 1996, citing a separation
date of September 30, 1996. In September 1996, the ACAP office closed.
On June 8, 1996, complainant filed a formal complaint. Complainant
alleged that she was denied the right to compete for employment through
PPP as it pertained to the RIF because of her gender. Complainant
believed that the agency considered her a military wife who followed
her husband, and thus was not entitled to careerist benefits. She also
maintained that because of her age, the agency sought to eliminate her
from the system in order to circumvent providing her with severance and
retirement benefits. Furthermore, complainant asserted that the agency
created a hostile work environment in reprisal for her communications
with the Inspector General, her Congressman and the EEO office. The
agency contended that it did not provide a RIF notice to complainant
earlier because she was on LWOP, and until she was given a RIF notice
in April 1996, she was ineligible for PPP registration.
The agency conducted an investigation, provided complainant with a copy of
the investigative report, and advised complainant of her right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision. Complainant requested a hearing before an AJ.
The AJ issued a decision without a hearing, finding no discrimination.
The AJ found that complainant failed to establish a prima facie case of
sex and age discrimination because she failed to show that similarly
situated individuals, not in her protected groups, were treated more
favorably. The AJ determined that complainant failed to provide
another comparable ACAP employee who received a RIF notice and was
placed in the PPP while on LWOP at a date earlier than she. Moreover,
the AJ found that, even if complainant established a prima facie case of
discrimination, the agency offered a legitimate, non-discriminatory reason
for its action, and the complainant failed to proffer probative evidence
that the agency's reason was pretext for discrimination. With respect
to complainant's claim of reprisal, the AJ found that the complainant
failed to establish a prima facie case because she failed to show that
she had participated in EEO activity prior to April 1996.
On March 15, 2000, the agency's final decision implemented the AJ's
decision.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgement 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 judgement a court does not
sit as a fact finder. Id. The evidence of the non-moving party must be
believed at the summary judgement stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is �genuine� if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celtotex v. Carett, 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 judgement is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ may
only properly consider summary judgement after there has been adequate
opportunity for development of the record.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Applying the standards
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
the Commission agrees with the AJ that complainant failed to establish
a prima facie case of sex or age discrimination because she failed
to show that another comparable ACAP employee received a RIF notice
and was placed on PPP while on LWOP at a date earlier than she. Even
assuming that complainant established a prima facie case of sex and age
discrimination, the agency articulated a legitimate, non-discriminatory
reason for its actions. Specifically, the agency believed that it could
not provide a RIF notice to complainant earlier because she was on LWOP,
and until she was given a RIF notice in April 1996, she was ineligible
for PPP registration. Complainant offered various arguments as to why
the agency's articulated reason for its actions were pretext, including
that her RIF letter was issued six weeks after others received theirs,
the ACAP constantly gave conflicting information, and the ACAP withheld
information concerning the abolishment of her position since December
of 1995. However, complainant fails to provide sufficient evidence that
the agency's belief that it could not provide complainant a RIF notice
because she was on LWOP was pretext for discrimination. Therefore,
we credit the AJ's finding of no discrimination on the bases of sex
or age. Furthermore, we find that complainant has failed to establish
a prima facie case of reprisal because she has failed to show that she
participated in EEO activity prior to April 1996. After reviewing the
record, including arguments and evidence not specifically addressed in
this decision, we find that the AJ's decision finding no discrimination
was proper.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__03-29-01________________
Date