0120063064_r
01-05-2007
Sandy Stursa Mason, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Sandy Stursa Mason v. Department of Agriculture
0120063064
January 5, 2007
.
Sandy Stursa Mason,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120063064<1>
Agency No. FS-2004-00494
Hearing No. 380-2005-00290X
DECISION
Complainant filed an appeal with this Commission from a March 6, 2006
agency decision which implemented the February 9, 2006 decision of an
EEOC Administrative Judge (AJ) finding no discrimination.
Complainant, a GS-9 teacher<2> at the Angell Job Corps Center, alleged
that the agency discriminated against her on the bases of sex (female),
age (56 at the time of the complaint) religion (Presbyterian), and in
reprisal for prior EEO activity when on November 19, 2004, complainant
learned that her acting supervisor was selected to fill the permanent
position for Principal Teacher (PT); that she was subjected to supervisory
harassment and disparaging remarks in front of staff members and students;
when she was absent from work, management questioned her spouse in a
rude and unreasonable manner; and that she was treated more negatively
than other employees.<3>
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment), noting that
he was adopting the statement of undisputed material facts contained
in the agency's motion for summary judgment and adopting the agency's
legal analysis as his conclusions of law.
The Commission's regulations allow an AJ to issue a decision without a
hearing when the AJ finds that there is no genuine issue of material fact.
See 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).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Initially, the Commission notes that there is no evidence
that complainant applied for the position of PT. Assuming that all
the other incidents which complainant identified in her affidavit as
having created a hostile work environment are true and construing all of
the evidence in complainant's favor, complainant has failed to establish
that any of the agency's actions were motivated by discriminatory animus.
Complainant and the PT may have had a strained and difficult relationship
but the evidence, considered in the light most favorable to complainant,
does not establish that the difficult relationship was the result of
complainant's membership in her protected classes of sex, religion, age,
or in reprisal for having engaged in prior EEO activity. The agency's
finding of no discrimination is AFFIRMED.
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
January 5, 2007
__________________
Date
1Due to a new data system, this matter has been re-designated with the
above-referenced appeal number.
2The record reveals that complainant resigned from the agency on July 15,
2005.
3In her complaint, complainant also alleged that she was given one detail
opportunity to serve as the PT. However, in her affidavit, complainant
stated that giving her the detail itself was not discriminatory and that
she had identified the detail only to provide background information.