01a43623
05-20-2005
Tracy P. Bork, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Appeal No. 01A43623 Agency No. 02-4358 Hearing No. 350-2003-08133X
Tracy P. Bork v. Department of Homeland Security
01A43623
May 20, 2005
.
Tracy P. Bork,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Appeal No. 01A43623
Agency No. 02-4358
Hearing No. 350-2003-08133X
DECISION
Complainant initiated an appeal from the agency's final order concerning
her equal employment opportunity (EEO) complaint of unlawful employment
discrimination. For the following reasons, the Commission AFFIRMS the
agency's final order.
The record reveals that complainant, a Computer Specialist, (GS-334-09)
at the agency's U.S. Customs, Douglas Port of Entry facility, filed
a formal EEO complaint on August 12, 2002, alleging that the agency
discriminated against her on the bases of sex (female) when:
Since November 2000, complainant has been given extensive travel
assignments away from her duty station.
Complainant further alleged that she has been subjected to discrimination
on the bases of sex and/or reprisal when:
(a) Since May 2002, complainant has not been allowed to take leave
without pay (LWOP) to attend college classes;
(b) Complainant was denied 12 hours LWOP for July 25 and 26, 2002,
and threatened with being charged absent without leave (AWOL) if she
did not take annual leave instead;
Complainant received two counseling letters on August 1, 2002;
Since seeking informal counseling, her travel assignments have increased
and her work schedule has changed to accommodate those assignments; and
Complainant had been denied overtime pay for drive status while on
temporary duty (TDY).<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision, dated March
18, 2004, finding no discrimination. Incorporated into the AJ's decision
is an order by which the AJ dismissed one claim and determined that a
decision without a hearing was appropriate for some of the other claims.
The AJ found that complainant failed to timely initiate the EEO process
with respect to claim (1). The AJ further found that complainant failed
to establish a prima facie claim of reprisal with respect to claim (2.a)
(denial of LWOP since May 2002) and that complainant failed to submit
any evidence that the agency's nondiscriminatory reason for denying her
request for LWOP on July 25 and 26, 2002 (claim (2.b)) was a pretext for
discrimination. The AJ concluded that summary judgment in the agency's
favor was appropriate for claim (2.b) and the portion of claim (2.a)
alleging reprisal.
After considering the evidence and testimony adduced at the hearing on the
remaining issues, the AJ concluded that complainant failed to establish
a prima facie case of sex discrimination regarding the denial of LWOP.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated male employees were granted LWOP for the purpose of
taking college courses or for other discretionary purposes. Moreover,
the AJ found the agency presented a non-discriminatory reason for its
denial of complainant's LWOP requests, namely the burden on the agency in
the form of costs for overtime incurred to cover complainant's absence.
The AJ found persuasive the agency's evidence regarding short-staffing
and coverage issues that led complainant's supervisor to deny her requests
for LWOP.
Regarding claim (2.c), the AJ found that the two letters of counseling
were not adverse actions and that complainant failed to establish a prima
facie case of reprisal discrimination and that complainant failed to show
by a preponderance of the evidence that the issuance of the two counseling
letters was motivated by discrimination. With respect to overtime pay
for drive time, the AJ found that the agency demonstrated that it had
likely paid for a male employee's commute time inadvertently, and that
when complainant requested overtime for her commute, her supervisor
appropriately denied her request. (claim (2.e)).
Lastly, the AJ found that complainant failed to refute the agency's
nondiscriminatory reason for changing her schedule after she contacted an
EEO counselor, namely, that complainant's supervisor changed her schedule
to accommodate the agency's training needs (claim (2.d)). Accordingly,
the AJ found that complainant failed to establish by a preponderance
of the evidence that discrimination occurred. The agency's final order
implemented the AJ's decision.
The Commission agrees with the AJ that complainant should have reasonably
suspected discrimination regarding claim (1) by April 2002, at the latest,
but that complainant failed to contact an EEO Counselor until June 28,
2002. The Commission finds that claim (1) was properly dismissed for
untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
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. 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.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's sex. We discern
no basis to disturb the AJ's decision.
Therefore, 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
May 20, 2005
__________________
Date
1The agency objected to the inclusion of this
claim inasmuch as it appears as one of complainant's requested remedies
and not as a separate claim. Nevertheless, the AJ determined this to
be one of complainant's claims at the hearing of the complaint.