01a53026
11-15-2005
Virginia M. Morales, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Virginia M. Morales v. Department of the Army
01A53026
11-15-05
.
Virginia M. Morales,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53026
Agency No. AR-WSMR-02-MAY-0003
AR-WSMR-02-JUN-0005
AR-WSMR-02-AUG-0003
Hearing No. 350-2004-00051X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her formal complaints of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and 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.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate and whether
the preponderance of the evidence indicates that discrimination occurred.
BACKGROUND
Complainant was employed as an Office Automation Assistant by the
agency at its White Sands Missile Range in New Mexico. Her first level
supervisor was A-1. B-1 was the agency official who supervised her
while she was on a detail. A-2 was the Division Chief and her second
level supervisor. A-3 was the Director of Installation Support and the
deciding official for all disciplinary actions.
Complainant filed three formal complaints against the agency. In her
first complaint, she claimed that she was discriminated against on the
bases of national origin (Hispanic) and disability (hearing impairment)
when: (1) her supervisor, A-1, became upset with her for asking him to
repeat himself because of her hearing impairment; and (2) on April 4,
2002, A-1 told her that she hung up the telephone too loudly, causing
him stress.<1> In her second complaint, she alleged discrimination
based on reprisal for having engaged in prior EEO activity when: (3)
on May 13, 2002, B-1 required her to sign out on a board whenever she
left the office; (4) on June 14, and June 28, 2002, B-1 denied her advance
annual and sick leave; and (5) on August 29, 2002, B-1 did not grant her
2 hours of annual leave in conjunction with 59 minutes of administrative
leave that had been authorized for employees who attended an awards
ceremony that morning. In her third complaint, she alleged that she
was discriminated against in reprisal for having engaged in protected
EEO activity when: (6) on July 25, 2002, she was given a formal written
reprimand by A-3, the Director of Installation Support, for misconduct,
inappropriate behavior and not using tact with supervisors and co-workers
in her interpersonal communication skills; and (7) on October 29, 2002,
she received a certified letter from A-3 which indicated that she was
being suspended for one day.
Following an investigation, complainant was informed of her right to
an administrative hearing before an EEOC Administrative Judge (AJ).
Complainant elected to have the hearing; however, the AJ, after a motion
by the agency, found that there were no genuine issues of material
fact and that summary judgment in the agency's favor was appropriate.
The agency issued a final action, which adopted the AJ's decision.
ANALYSIS AND FINDINGS
Summary Judgment
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 does not
sit as a fact finder. Id. 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. A disputed 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.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, we find that the AJ properly determined that
there were no genuine issues of material fact and that summary judgment
in favor of the agency was appropriate.
Claims (1) and (2)
Among other findings, the AJ concluded that complainant failed to
establish that she was discriminated against with regard to these two
claims because she was not subjected to an adverse action. Assuming,
as complainant alleges, A-1 became upset with her when she asked him to
repeat himself or when she hung a phone up too loudly, he took no action
against her because of either matter.
Claims (3), (4) and (5)
With respect to claim (3), the AJ noted evidence in the record indicating
that the policy of the section that complainant was detailed to was
that all employees had to sign out on a board when they were away from
the office. The record contains an e-mail from B-1 to complainant
responding to her questions about the policy. Although complainant did
not participate in the agency's fact-finding hearing nor did she respond
to its request for a declaration, she did submit various documents in
opposition to the agency's motion for summary judgement. With regard
to claim (3), complainant claimed that C-1, a co-worker, once told her
that, �We never had to sign out before.� Complainant maintained that
C-1 would testify on her behalf by telephone. She also submitted a
signed, but unsworn statement, by C-2 and C-3 who were also co-workers.
Among other things, C-3 claimed that he never witnessed anyone using
the sign out board when leaving the building.
The AJ found that the proffered statements of C-1 and C-3 were hearsay
and inadmissible. A review of the Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-15 (November 9, 1999)
indicates that the burden is placed on the party opposing summary judgment
to identify the disputed facts in the record or to demonstrate there is
a dispute by producing affidavits or records that tend to disprove the
facts asserted by the moving party. Here, we find that complainant's
summary of C-1's alleged testimony and the unsworn statement of C-3
do not meet the standards contemplated by the Management Directive.
Therefore, we find that the AJ was within his discretion not to admit
or consider this evidence.
With respect to claim (4), B-1 stated that he denied complainant's request
for advanced leave because complainant did not provide documentation to
support the request. Once the documentation was provided, B-1 approved
the request on May 31, 2002. With regard to claim (5), B-1 stated
that he denied complainant's request to take 2 hours of annual leave
in conjunction with the 59 minutes of administrative leave that was
provided to employees who attended an award's ceremony from 8:30 - 9:30
A.M., because he received an e-mail indicating that the administrative
leave could not be used in conjunction with any other type of leave.<2>
Although B-1 would not approve complainant using the 2 hours of leave in
conjunction with the administrative leave, he did approve her request
for two hours of leave that day. Therefore, complainant left work two
hours early.
The AJ found, with respect to claims (3), (4) and (5), that complainant
failed to show that she was treated differently than other similarly
situated employees, or that she suffered an adverse employment action.
Likewise, the AJ noted B-1's undisputed assertion that he was not aware
of complainant's prior EEO activity.
Claims (6) and (7)
With respect to claim (6), the record indicates that, in 1998, complainant
engaged in protected EEO activity and she filed an EEO complaint against
two agency officials. There is no evidence that A-1, B-1, A-2 or A-3 were
aware of this activity. On April 15, 2002, A-2 proposed that complainant
receive a letter of reprimand for allegedly engaging in inappropriate
behavior towards her coworkers. According to A-2, he was trying to show
complainant that her behavior and attitude towards her coworkers were
critical to the success of the division. Complainant, he maintained,
adamantly refused to accept that there was problem with her behavior.
Complainant contacted the EEO office on April 16. This was her first
EEO activity since 1998. A-3, the deciding official, issued the letter
on July 25, 2002. At the time she issued the letter of reprimand, A-3
was aware of complainant's EEO activity. According to A-3, she upheld
A-2's proposal because she felt the reprimand was warranted.
With respect to claim (7), B-1 proposed a one-day suspension of
complainant, on or about August 26, 2002. The proposal was based on
complainant's behavior on July 29, 2002. According to B-1, he informed
complainant that the clinic had scheduled a medical appointment for her.
Complainant indicated, however, that she would not go to the appointment
because she did not know why it had been scheduled. B-1 suggested that
they both go into his office in order to contact the clinic, because he
also was not aware of the purpose of the appointment. Complainant refused
to go into B-1's office.<3> Subsequently, B-1 tried to inform complainant
what he had discovered about the appointment and to have her speak to
the officials involved. Again, complainant refused to cooperate with
B-1 in resolving the matter. B-1 felt that complainant's attitude,
behavior and comments to him were insubordinate and disruptive, in
part, because they were witnessed by other employees. At the time of
the proposal, complainant had filed her first complaint, and had made
contact with a counselor regarding her second and third complaints.
B-1 indicated that he had no knowledge of complainant's EEO activity
until September 13, 2002, when he was interviewed. On October 21, 2002,
A-3 upheld the proposal and suspended complainant. According to A-3,
she considered the fact that complainant had received prior discipline.
A-3 was aware of complainant's EEO activity when she suspended her.
The AJ found that complainant failed to establish a prima facie case
of reprisal discrimination because there was no causal connection
between complainant's protected EEO activity and the adverse actions
set forth in claims (6) and (7). The AJ's determination was based on
the lack of knowledge by A-2 and B-1 of any EEO activity by complainant
when they proposed discipline. Assuming, arquendo, that complainant
established a prima facie case of reprisal discrimination, we find that
the agency articulated legitimate non-discriminatory reasons for its
actions. Complainant, because she did not participate in the agency's
investigation, did not provide evidence of pretext.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred. Regarding complainant's
three complaints, we find that other than her bare assertion that she
was discriminated against, she offered no persuasive evidence that
discriminatory animus played a role in any of the seven claims.<4>
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
______11-15-05____________
Date
1In her complaint, complainant listed her race as �Hispanic.� We note,
however, that the Commission recognizes the term �Hispanic� to be an
indication of national origin, not race.
2Although the award ceremony was in the morning, management provided
administrative leave for the afternoon.
3B-1 contacted the clinic and discovered that the appointment was related
to complainant's medical retirement.
4In reaching the above decision, we assumed, for analytical purposes only,
that complainant was an individual with a disability as alleged.