0120062874
05-12-2008
Alexas Jones, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Alexas Jones,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200628741
Hearing No. 370-2006-00062X
Agency No. 04-61065-11152
DECISION
On April 4, 2006, complainant filed an appeal from the agency's March
3, 2006 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events giving rise to this complaint, complainant worked as
a Police Officer, GS-083-5, at the agency's Weapons Station Seal Beach,
Concord, California. On December 18, 2004, complainant filed an EEO
complaint claiming that she was discriminated against on the bases of sex
(female), disability (lower back and hip injury), and reprisal for prior
protected EEO activity when:
1. On August 21, 2002, complainant was terminated from her position
during her probationary period.
2. On August 4, 2002, complainant was sexually harassed by the Acting
Watch Commander when she refused his sexual advances.
3. On August 4, 2002, the agency failed to provide her with a reasonable
accommodation.
The agency accepted claim (1) for investigation. The agency dismissed
claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds
that complainant failed to initiate contact with an EEO Counselor in
a timely manner. The agency noted that complainant did not contact
an EEO Counselor until September 20, 2002, more than 45 days after the
alleged discrimination occurred. At the conclusion of the investigation,
complainant was provided with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing. The agency filed a Motion
for a Decision Without a Hearing. The AJ issued a decision without
a hearing on January 30, 2006, finding no discrimination in claim (1)
and affirming the agency's dismissal of claims (2) and (3).
Regarding claim (1), the AJ noted that the agency stated that complainant
was terminated for having been Absent Without Leave (AWOL) on August 3,
2002, and from August 9 - 17, 2002, and for having created a website with
photographs which depicted complainant in salacious and pornographic
poses. According to the AJ, complainant offered no evidence, and
the record contains no evidence, indicating that other probationary
employees, similarly situated to her, were not similarly terminated in
similar circumstances, regardless of their protected status. The AJ
further found that there is no evidence indicating that the reason for
complainant's termination was in any way related to her sex, disability,
or prior EEO activity. The AJ noted that complainant's termination was
rescinded on November 7, 2002, and complainant was reinstated with back
pay.2 The agency subsequently issued a final order fully implementing
the AJ's decision. Thereafter, complainant filed the instant appeal.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless he or she ensures that the party opposing the ruling is
given: (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Initially, we find that the agency's dismissal of claims (2) and (3)
was proper. With regard to claim (1), for purposes of analysis, we
will assume, arguendo, that complainant has established a prima facie
case under the alleged bases. The agency stated that complainant
was terminated from her position due to her being AWOL and because of
her website that contained photographs depicting her in salacious and
pornographic poses. As to complainant being AWOL, the agency stated that
complainant had called in sick but was denied leave as she was advised
that she was needed at work that day. With regard to the website, the
agency stated that complainant was publicly advertising the website and
making it available to everyone on the base, and that there was concern
as to the impact that complainant's actions regarding her website would
have on her effectiveness as a police officer. We find that the agency
articulated legitimate, nondiscriminatory reasons for the termination.
Upon review of the arguments set forth by complainant and the evidence
in the record, we find that complainant has not established that the
agency's reasons for the termination were pretext intended to mask
discriminatory motivation. Complainant has not shown that she was
discriminated against because of her sex, disability or reprisal when
she was terminated from her position. We do not address in this decision
whether complainant is a qualified individual with a disability.
The agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 12, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Complainant was promptly reissued a Notice of Termination on November
7, 2002. The AJ noted that complainant did not seek EEO counseling with
regard to the second termination and that she did not seek to amend her
complaint to include a claim regarding the second termination.
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0120062874
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062874