0120161139
03-27-2018
Angela Y.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Angela Y.,1
Complainant,
v.
R. Alexander Acosta,
Secretary,
Department of Labor
(Occupational Safety & Health Administration),
Agency.
Appeal No. 0120161139
Hearing No. 520-2013-00336X
Agency No. DOL1202120
DECISION
On February 23, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 19, 2016 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether the EEOC Administrative Judge erred in granting summary judgment in favor of the Agency, concluding the evidence of record failed to prove Complainant was discriminated against based on sex, disability or age when she was allegedly accused of professional misconduct or drug use, was not given equal training opportunities, did not receive awards for accomplishments, and was not permitted to use her private automobile for out-of-town business travel.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Industrial Hygienist/Compliance Officer at the Agency's Occupational Safety and Health Administration (OSHA) Buffalo Area Office facility in Buffalo, New York.
On September 5, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical and mental), and age (over 40) when:
1. On April 6, 2012, the Area Director made allegations of professional misconduct and launched an investigation into Complainant's work practices.
2. On April 6, 2012 and continuing, Complainant had not been given the same training opportunities as other co-workers.
3. On April 6, 2012 and continuing, Complainant's "accomplishments" had not been recognized, while other employees have received commendations and awards for similar achievements.
4. On April 17, 2012, the Area Director placed specific restrictions on her work-related travel not placed on other employees.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment, and over Complainant's objections, the AJ granted the motion and issued a decision without a hearing on January 19, 2016, in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
ANALYSIS AND FINDINGS
We must 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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
Professional Misconduct
Complainant alleges that on April 6, 2012, the Area Director made allegations of professional misconduct and launched an investigation into Complainant's work practices. However, the Area Director denies this allegation and states the Agency did not conduct an investigation of the Complainant for any reason, including any possible use of drugs.
A review of the record in this matter fails to reveal that Complainant was accused of professional misconduct or drug use. Complainant admits, as set forth in the ROI, that she has not been made aware of any action being taken against her for professional misconduct or drug use. Complainant admits that she has no documentation regarding such an investigation/inquiry. No evidence or documentation that could possibly lead a reasonable fact finder to a conclusion that Complainant was accused of this misconduct exists in the record.
Accordingly, we find no evidence to support Complainant's allegation of discrimination based on her sex, disabilities or age regarding professional misconduct or drug use.
Training Opportunities
The evidence in the record does not support Complainant's contention that she has been denied training opportunities. Complainant contends that she prepared a list of potential training classes she wished to attend. The Area Director denied receiving such a list. There is no additional evidence that demonstrates that he received such a list and Complainant provided no proof to the contrary.
Moreover, Complainant was approved and had an opportunity to attend the Occupational Safety and Health Standards for Construction course. According to the record, Complainant was too ill and could not attend. According to Complainant, she did not actively pursue any additional training requests.
Accordingly, we find no evidence to support Complainant's allegation of discrimination based on her sex, disabilities or age regarding training opportunities.
Awards and/or Commendations
Complainant claims that she "worked on a case in May 2012 that should have garnered a press release and a 'Kudos' recognition." The Area Director attested that Complainant was awarded the Secretary's Special Achievement Award with a cash bonus in June 2012. She also received a cash bonus for the "Exemplary" rating on her Performance Appraisal for the rating term of October 2011 to September 2012. Accordingly, we find no evidence to support Complainant's allegation of discrimination based on her sex, disabilities or age regarding awards and/or commendations.
Privately Operated Vehicle Use
The Agency implemented a policy that limited the use of privately owned vehicles while on official travel when government vehicles were available. The Agency sought to cut costs involving reimbursements for business-related use of employees' privately owned vehicles. The requirement covered all employees. Privately owned vehicles were not to be used for out of town travel.
The only time a privately-owned vehicle was when the vehicle was being used by employees in the area in which they lived. Complainant learned that two younger male employees were permitted to use their personal vehicles. When Complainant brought this to the Agency's attention, it was investigated. It turned out that the younger male employees lived in Buffalo where they were using their own vehicles. This was permitted under the Agency's policy. Unlike these two younger males' situation, Complainant lived out of the area to which she was assigned for work. As such, under the policy, she could not be reimbursed for using her personal vehicle for work. Further, a male Compliance Assistance Specialist attested that he was prohibited from using his private vehicle to travel out of his home area to Syracuse, New York, on December 17, 2012. Complainant did not provide evidence that her sex was a factor in her limitation on the use of personal vehicle or that any other employees outside of her protected groups were permitted to use their own vehicles for out-of-town travel.
Accordingly, we find no evidence to support Complainant's allegation of discrimination based on her sex, disabilities or age regarding private use of vehicles for work.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision, concluding no discrimination was established.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_3/27/18_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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