Mary A. M. Foeller, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120063585 (E.E.O.C. Feb. 23, 2007)

0120063585

02-23-2007

Mary A. M. Foeller, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Mary A. M. Foeller,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01200635851

Hearing No. 320-A5-0253X

Agency No. 6X1S04038

DECISION

On May 30, 2006, complainant filed an appeal from the agency's April

25, 2006, final order concerning her equal employment opportunity (EEO)

complaint alleging 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 deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant worked

as a Management and Program Analyst, General Schedule (GS)-0343-09,

Detachment 7, Civil Air Patrol, Rocky Mountain Liaison Region, Peterson

Air Force Base, Colorado. Believing she was a victim of discrimination,

complainant sought EEO counseling, and filed an EEO complaint on July

28, 2004, which she amended on October 19, 2004, alleging that she was

discriminated against and subjected to unlawful harassment, on the bases

of sex (female), religion (Christian), and age (D.O.B. 12/27/53) when:

1. On August 8, 2003, she received negative performance feedback;

2. On September 2, 2003, she was no longer allowed to participate in

the Civilian Health and Fitness Program [CHFP];

3. On September 24, 2003, her projected leave was disapproved;

4. On September 25, 2003, she received an Oral Admonishment;

5. On November 6, 2003, she received an Oral Admonishment;

6. On November 28, 2003, she was required to participate in Staff

Assistance Visits [SAVs];

7. On March 23, 2004, her supervisor [S1] stated that he believed she

was abusing her sick leave;

8. On May 5, 2004, she received negative performance feedback;

9. On May 17, 2004, she received a notice of leave requirement letter

and a sick leave abuse letter;

10. On June 3, 2004, she received a medical accommodation letter;

11. On July 15, 2004, she was denied the opportunity to participate in

the National Security Personnel System [NSPS] focus group;

12. On July 22, 2004, she received a notice of reprimand;

13. On August 11, 2004, she was directed to engage in "Additional Duty

and Training" which could have an adverse effect on her close-out duties

as the Resource Advisor;

14. On August 23, 2004, she received a proposed notice of a five-day

suspension;

15. On October 1, 2004, she received negative performance feedback.

16. On October 18, 2004, she received a notice of three day suspension.2

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. Over complainant's objections, the AJ assigned to

the case granted the agency's December 21, 2005 motion for a decision

without a hearing and issued a decision without a hearing on March

15, 2006.

The AJ incorporated into his decision the "undisputed facts" as set forth

in the agency's Motion for a Decision Without a Hearing, and adopted

them as his findings of fact. The AJ then found that complainant failed

to establish a prima facie case of discrimination on the alleged bases,

noting that she did not show that similarly-situated individuals, not

in her protected classes, were treated more favorably under similar

circumstances. The AJ found that complainant did however establish

a prima facie case of reprisal discrimination. The AJ further found

that the agency articulated legitimate, nondiscriminatory reasons for

its actions (which he explained in detail), and that complainant has

not presented evidence of pretext. Under a harassment analysis, the

AJ found that complainant failed to offer evidence that the alleged

harassing incidents were based on her membership in a protected group.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

On appeal, complainant notes that she was the only civilian employee

working in her office at the relevant time, as the other employees

were all military members. She states that she should have hired an

attorney to represent her through the EEO process. She also asserts

that a former employee of S1 who is female, Christian, and over age

40, experienced similar treatment, and that the EEO investigator never

obtained testimony from the former employee because the investigator used

the wrong e-mail address. The agency asserts that the record contains no

genuine issue of material fact in dispute, and asks that the Commission

affirm the final order.

In rendering this appellate decision we must scrutinize the AJ's legal

and factual conclusions, and the agency's final order adopting them,

de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on

an appeal from an agency's final action shall be based on a de novo

review . . ."); see also EEOC Management Directive 110, Chapter 9,

� VI.B. (November 9, 1999). (providing that an administrative judge's

"decision to issue a decision without a hearing pursuant to [29 C.F.R. �

1614.109(g)] will be reviewed de novo"). This essentially means that we

should look at this case with fresh eyes. In other words, we are free

to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,

factual conclusions and legal analysis - including on the ultimate fact

of whether intentional discrimination occurred, and on the legal issue

of whether any federal employment discrimination statute was violated.

See id. at Chapter 9, � VI.A. (explaining that the de novo standard of

review "requires that the Commission examine the record without regard to

the factual and legal determinations of the previous decision maker,"

and that EEOC "review the documents, statements, and testimony of

record, including any timely and relevant submissions of the parties,

and . . . issue its decision based on the Commission's own assessment

of the record and its interpretation of the law").

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. 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. The Commission finds that a decision

without a hearing was warranted in the instant case.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Disparate Treatment

Assuming arguendo that complainant established a prima facie case

concerning the issues in her complaint, the agency has articulated

legitimate, nondiscriminatory reasons for its actions. Here, it is

clear that complainant and S1 viewed complainant's position description

quite differently, and that complainant feels that S1 assessed her work

incorrectly. Complainant also clearly feels that she was over-extended

in terms of the work that she was required to perform. Even considering

the record evidence in the light most favorable to complainant, we do not

discern any persuasive evidence that the motivation for S1's treatment of

her was discriminatory or retaliatory animus. As to complainant's claim

that the testimony of a female, Christian former employee of S1 (over age

40) was pertinent to her case, and is missing from the investigation,

we note that even assuming the former employee had testified that she

was treated similarly to complainant, this, without more, would still

not raise a genuine issue of material fact in this case. Complainant

has not asserted that the former employee would be able to provide any

specific, persuasive evidence that S1's actions concerning complainant

were motivated by sex, age, religion or prior EEO activity.

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) she was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2)

the harassment was based on her membership in a protected class.

See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on

Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997). The evidence in

the record is insufficient to support a finding that management's actions

towards complainant were based on her membership in a protected group.

See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on

Harris v. Forklift Systems, Inc. at 3, 6.

After a careful review of the record, the Commission finds that the

AJ's decision without a hearing was appropriate, as no genuine issue

of material fact is in dispute. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the

agency's final order.

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

February 23, 2007

__________________

Date

1 Due to a new data system, your case has been re-designated with the

above referenced appeal number.

2 In addition to the above-cited bases of discrimination, complainant

also alleged reprisal for prior EEO activity arising under Title VII

and the ADEA, as to the challenged actions that occurred after she filed

her July 28, 2004 formal complaint.

??

??

??

??

2

0120063585

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036