0120061647
11-15-2007
Theresa L. Schreiber, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Theresa L. Schreiber,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200616471
Agency No. 2004-18201-FHWA-05
Hearing No. 320-2005-00116X
DECISION
Complainant filed an appeal with this Commission from the December 13,
2005 agency decision which implemented the December 6, 2005 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against her on the
basis of age (D.O.B. August 4, 1937) when: (1) on June 17, 2004, the
agency notified her that she had been reassigned from the position
of Team Leader to a Classification Specialist; and (2) on June 18,
2004, the agency omitted her from a list which the agency sent to all
Lakewood Administrative Services (LAST) staff and field managers and
which contained all Human Resource staff changes.
Complainant requested a hearing before an AJ. The AJ issued a notice
of his intent to issue a decision without a hearing to which complainant
objected. The AJ thereafter issued a decision without a hearing (summary
judgment).
In his decision finding no discrimination, the AJ found that complainant
had established a prima facie case of age discrimination, having
established that she had been the subject of an adverse action when she
was reassigned and that the team leader who was selected was 14 years
younger than complainant. The AJ found further that complainant failed
to show that the agency's articulated reasons for its actions were mere
pretext to mask intentional discrimination. The AJ noted that there
were two teams in LAST but after complainant's previous supervisor left,
the new supervisor reorganized the office into a single team. The AJ
noted that the new team leader was better qualified as a single leader
of the single team. Regarding claim 2, the AJ found that complainant's
omission from the electronic mail correspondence was a mistake, that
another electronic mail was sent correcting the mistake, and that
the supervisor had apologized to complainant. The AJ concluded that
complainant had failed to show by a preponderance of the evidence that
the agency discriminated against her.
The record reveals that complainant worked for the agency as a team
leader in LAST prior to her reassignment to the position of Classification
Specialist in June 2004. The record reveals further that the LAST staff
was led by a Manager (M-1) who also became complainant's first level
supervisor in June 2004. The record also reflects that there were two
teams in LAST which came under the supervision of a Human Resources
Manager (HRM-1) who reported directly to and was supervised by M-1.
The record reveals that an announcement of staff changes was sent via
electronic mail on Friday, June 18, 2004, by M-1 to LAST and other
agency offices in which she stated that she was advising the offices of
recent and upcoming changes to the Human Resources (HR) area of LAST
and informing the electronic mail recipients of what she described as
the agency's gains and losses in personnel. Complainant's name was not
mentioned. The record further reveals that M-1 noted in the electronic
mail that Team Leader-2 was leaving the office effective August 1, 2004,
but until then, Team Leader-2 would continue to work on staffing and
recruitment and train new employees. M-1 also noted that the Benefits
Specialist (BS) (D.O.B. August 21, 1952) would become the Recruiting
Staff Leader, effective June 27, 2004. M-1 noted that HRM-1 would no
longer be working for LAST effective June 27, 2004.
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. 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.
An AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g) is reviewed de novo.
Upon review, the Commission finds that the AJ's grant of summary
judgment was proper because no genuine issues of material fact exist.
Assuming without deciding that complainant has established a prima
facie case, the agency has articulated a legitimate, nondiscriminatory
reason for its actions, i.e., complainant was reassigned because M-1,
who began heading up the office in June 2004, decided to reorganize the
office using only one team. Complainant has not shown that the agency's
reason was pretextual and that the reorganization was intended to get
rid of her and use one team only. Regarding claim 2, and assuming that
it states a claim, complainant has likewise failed to show that the
agency's action was motivated by discriminatory animus. Construing the
evidence in the light most favorable to complainant, complainant has not
shown by a preponderance of the evidence that the agency's actions were
motivated by discriminatory animus. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
The agency's decision finding 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
November 15, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120061647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036