01A33120
03-24-2000
Maryann T. DeLuca, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Maryann T. DeLuca v. Small Business Administration
01A33120
March 24, 20004
.
Maryann T. DeLuca,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A33120
Agency No. 12-00-005
Hearing No. 160-A1-8051X
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. 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 complainant, a Business Information
Specialist/Manager of the Business Information Center (BIC), at the
agency's One Stop Capital Shop at the Business Resource and Investment
Service Center (BRISC) located in New York, New York, filed a formal EEO
complaint on December 7, 1999, alleging that the agency discriminated
against her on the bases of race (Caucasian), sex (female), color (White),
and in reprisal for prior EEO activity, when she was terminated during
her probationary employment on July 23, 1999. Complainant also alleged
that she was subjected to a hostile work environment based on her race
and sex during her probation.
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 race, color and sex discrimination. The AJ concluded that complainant
established a prima facie case of retaliation. However, the AJ further
found that the agency articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the AJ found that complainant was a
probationary employee who was not meeting the basic requirements of
the job. The AJ also found that complainant was terminated because
there were complaints from BRISC management about her ability to open
the BIC in a timely manner and about the manner in which complainant
worked with BRISC management. Finally, the AJ found that on several
occasions, complainant engaged in altercations with customers, thereby
violating customer service standards by failing to be cordial and polite
to customers. The AJ found that complainant's supervisor received several
complaints from customers about complainant's negative attitude toward
them. Regarding complainant's claim of a hostile work environment, the
AJ concluded that the incidents about which complainant complained were
not sufficiently severe or pervasive to alter complainant's conditions
of employment and did not rise to the level of hostile work environment.
On appeal, complainant contends, among other things, that she was
subjected to disparate treatment, even though she was replaced by
another White woman. Complainant argued that she was discharged based
on retaliation, because other employees who were almost always late,
were not terminated like her. Complainant also argued that she was late
maybe one or two times. In response, the agency restates the position
it took in its final order and requests that we affirm its final order.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting them, under a de
novo standard of review. 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 for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (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 issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
ANALYSIS AND FINDINGS
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
After a careful review of the record, the Commission finds that
the issuance of a decision without a hearing was appropriate, as
no genuine dispute of material fact exists. Specifically, we note
that the agency established legitimate non-discriminatory reasons for
complainant's termination. The record establishes that complainant was
terminated because she had problems with customers, was rude to them,
and did not get along with the leadership of the BRISC. The record
also reveals that complainant had attendance problems. We further
note that complainant did not dispute any of the agency's reasons for
her termination. While complainant argued that other employees had
attendance problems and were not discharged, she failed to establish
that these employees were similarly situated to her. We conclude that
complainant has not �set forth specific facts showing that there is a
genuine issue for trial.� Fed. R. Civ. P. 56 (e).
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., complainant's claim of harassment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994).
A prima facie case of harassment is precluded based on our finding that
complainant failed to establish that any of the actions taken by the
agency were motivated by discrimination based on her protected classes.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
We find that the AJ's decision properly summarized the relevant facts and
referenced the 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 towards complainant's
protected classes. Therefore, for the foregoing reasons, 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
March 24, 20004
__________________
Date