0120065006
05-15-2008
Mary C. Mosier, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Mary C. Mosier,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200650061
Agency No. 8Y1M04002F06
Hearing No. 3502000500017X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 26, 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.
Prior to her termination, complainant worked as a Resource Management
Specialist at Kirtland AFB, New Mexico. She claimed discrimination
on the bases of sex (female), age (48), and in reprisal for filing this
complaint when, from October 7, 2003, to December 24, 2003, her supervisor
(SB), the Vice-commander of the 377 Air Base Wing, "removed workload
from her to cover his culpability in assigning higher graded duties
and responsibilities to her without experience credit or compensation."
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ noticed her intent to issue a
summary judgment decision, and on June 14, 2006, she issued a decision
without a hearing, finding that the agency did not discriminate against
complainant.2
The AJ found that complainant did not establish a prima facie case of
discrimination based on sex, age, or reprisal and that, even had she
done so, the agency articulated legitimate, nondiscriminatory reasons
for its actions, and complainant did not demonstrate pretext. In early
2003, the agency's Office of Special Investigations began a criminal
investigation, eventually finding that complainant had falsified her
timecards for pay periods 5-7 of 2003, to claim 218 hours of overtime
in the amount of $6,657.72. SB explained that complainant's duties
required a security clearance and were of a sensitive nature that
required trust and confidence, which was displaced by her illegal act,
and SB and his superior, the Installation Commander (HA), reassigned some
of complainant's duties.3 In addition, SB and HA stated that they were
reordering the staffing at the facility. They denied the allegations
in the complaint and stated that they learned of her EEO activity after
she was removed.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999). Initially, we consider whether
the AJ properly issued a decision without a hearing on this record.
The Commission's regulations allow an AJ to issue a decision without
a hearing when s/he finds that there are no genuine issues of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure in the Federal Rules of Civil Procedure,
Rule 56, and 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). The AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision. The AJ's issuance
of a decision without a hearing was appropriate because there are no
genuine issues of material fact in dispute, and the preponderance of
the evidence of record does not establish that discrimination occurred.
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__5/15/2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 On July 27, 2005, the AJ dismissed four claims for untimely contact
with an EEO counselor. 29 C.F.R. � 1614.107 (a)(2). We affirm the AJ's
dismissal action.
3 In November 2003, the agency issued complainant a Notice of Removal,
and she was removed in January 2004. She appealed the removal to the
Merit Systems Protection Board (MSPB), and, on June 9, 2005, the MSPB
AJ affirmed the agency's action, which became final on July 14, 2005.
In addition, in December 2003, the U.S. Attorney for the District of New
Mexico filed a civil action against her in the U.S. district Court for
the District of New Mexico (Case No. CIV-03-01391 RB/ACT). This matter
was resolved by a Consent Judgment in favor of the agency for the amount
of $7,500.00 with interest on the unpaid balance.
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0120065006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065006