0120062418
09-07-2007
Toni L. Tyson, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Toni L. Tyson,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200624181
Agency No. 2005-18897-FAA-04
Hearing No. 280-2005-00258X
DECISION
Complainant filed an appeal from the agency's final action dated January
23, 2006, finding no discrimination with regard to her complaint.
In her complaint, dated December 10, 2004, which was later amended,
complainant, a former employee of the agency, alleged discrimination
based on disability (anxiety, depression) and in reprisal for prior EEO
activity when: (1) she was not selected for the position of Regional
Office Staff Specialist (ROSS); and (2) she was not placed in a Flight
Service Data Processing position.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On January
9, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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 grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. The Commission also
finds that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged actions. With regard to claim
(1), the agency stated that on July 28, 2004, it announced a vacancy
for the ROSS position as issue. Complainant was not selected for that
position because she was ineligible for that vacancy. Specifically,
the agency stated that the vacancy was open only to agency employees,
and complainant was not an agency employee at that time. Complainant
previously took disability retirement after she could not maintain her
medical clearance on February 11, 2004.
With regard to claim (2), the agency stated that in October 2004, an
identified Supervisory Air Traffic Control Specialist was reassigned
to the FSCP position at issue. No competitive selection process took
place since this reassignment was a lateral transfer to a different
facility. It is noted that the instant complaint clearly does not involve
complainant's previous retirement, rather her subsequent nonselections.
After a review of the record, the Commission finds that complainant
failed to rebut the agency's legitimate, non-discriminatory reasons for
the alleged actions. There is no indication that any agency action was
motivated by discrimination. The Commission also finds that complainant
is not a qualified individual with a disability since she was ineligible
for consideration for the positions at issue. See 29 C.F.R. � 1630.2(m);
Kitaura v. United States Postal Service, EEOC Petition No. 03980089
(March 11, 1999).
Accordingly, the agency's final action 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
09/07/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062418
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036