0120113551
05-10-2013
Anita M. Puryear,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Appeal No. 0120113551
Hearing No. 531-2010-00375X
Agency No. ARS-2009-00734
DECISION
On July 26, 2011, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a June 27, 2011, final Agency order implementing the EEOC Administrative Judge's (AJ) decision finding no discrimination with regard to her complaint of unlawful employment discrimination in violation of 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Library Technician at the Agency's National Agricultural Library in Beltsville, Maryland.
On June 18, 2009, Complainant filed a formal complaint, as amended, alleging in relevant part that the Agency subjected her to discrimination based on disability:
1. when she was removed from the leave donor program in April 2009; and
on the bases of disability and reprisal for prior EEO activity under the Rehabilitation Act when:
2. she was issued a letter of reprimand on June 9, 2009.
Following an investigation, Complainant requested a hearing before an EEOC AJ. The AJ issued a decision without a hearing finding no discrimination, which the Agency fully implemented.1
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, on appeal, the Agency argues that Complainant's complaint should be dismissed because she filed a civil action on the same matter. 29 C.F.R. � 1614.409. On November 28, 2011, Complainant filed a civil action (identified as Civil Action No. 1:11-cv-2104) in the United States District Court for the District of Columbia, which was transferred in December 2011 to the United States District Court for the District of Maryland and renumbered as Civil Action No. 8:11-cv-3640.
On April 30, 2013, the Court found that this administrative complaint, along with a prior one, formed the basis of the civil action. Regarding the portion of the civil action connected to this administrative complaint, the Court found that it lacked jurisdiction because Complainant filed her appeal with the EEOC on her complaint on July 26, 2011, and filed her civil action on November 28, 2011, i.e., 125 days after filing her appeal. The Court found that the civil action on the matter was premature because 180 days had not elapsed when she filed her civil action, nor had the EEOC issued a decision on her appeal. This is consistent with 29 C.F.R. � 1614.407(d).
The Court did not indicate whether it was dismissing the civil action with or without prejudice. In Patel v. Department of Veterans Affairs, EEOC Request No. 05920346 (May 12, 1992), the Commission reversed an agency decision which dismissed a portion of an administrative complaint on the grounds that the complainant filed a civil action on the same matter. The Commission noted that the court granted the agency's motion to dismiss the civil action because the complainant failed to exhaust his administrative remedies by not waiting to file his civil action 180 calendar days after filing his administrative complaint. The Commission found that because the Court did not reach the merits of the case, there was no possibility of conflicting decisions, and to deny processing in the administrative forum would deny the complainant any forum for his complaint. We find that Patel is applicable here. Accordingly, we decline to dismiss Complainant's appeal on procedural grounds and will address her appeal of the determination on the merits of her complaint.
.
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
For purposes of analysis, we will assume Complainant is an individual with a disability.
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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Based on documentation in the record, the AJ found that Complainant was enrolled in the leave donor program from March 2009 to May 23, 2009. Complainant returned to work on May 19, 2009, and submitted medical documentation that she was fully disabled from March 18, 2009 to May 18, 2009, and may need some days thereafter to recover.
Agency regulations state that to be eligible for the leave donor program, an employee must be experiencing a medical emergency that will require an absence from duty for 24 work hours without pay, and all annual and sick leave must be exhausted.
For purposes of analysis, the AJ assumed Complainant was an individual with a disability. The AJ found that Complainant did not establish a prima facie case of disability discrimination on the leave donor program because she failed to show anyone without a disability was treated more favorably.
The AJ found that assuming arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its action. Specifically the AJ found that in removing Complainant from the leave donor program, the leave transfer coordinator (a Human Resources Division employee) properly concluded that the medical documentation did not show Complainant was presently experiencing a medical emergency. The AJ found that Complainant did not show this reason was pretext to mask discrimination, and there was no evidence of discriminatory animus.
Complainant was issued a letter of reprimand dated June 9, 2009, by her first line supervisor for inappropriate behavior in the workplace. In the letter the supervisor specified that in a meeting on March 4, 2009, Complainant became antagonistic toward her, stated she was "evil," and left the meeting before it was over. Complainant admitted all this occurred.
On the reprimand, the AJ found that Complainant did not establish a prima facie case of disability discrimination because she failed to show someone without a disability was treated favorably. The AJ found Complainant established a prima facie case of reprisal discrimination for prior EEO activity.
The AJ went on to assume, for purposes of analysis, that Complainant established a prima facie case of disability discrimination. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for the letter of reprimand -- the reasons in the letter of reprimand, and she was previously warned about unprofessional behavior. The AJ found that Complainant did not show these reasons were pretext to mask discrimination.
We agree with the AJ that, based on the evidence of record, Complainant failed to prove discrimination or reprisal on issues 1 and 2.
The Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 10, 2013
__________________
Date
1 In its letter accepting Complainant's complaint, the Agency also defined her complaint as containing the allegations that she was discriminated against based on disability when on February 2, 2009, her request for advance sick leave was denied, and on March 4, 2009, her request to telework was denied. The Agency dismissed these allegations on the grounds that Complainant failed to timely initiate EEO counseling. On August 12, 2010, the AJ sent the parties an Acknowledgment and Order, which advised that if part of a complaint is dismissed, the Complainant had 30 days from receipt of the above Order to oppose the dismissal in writing, and if she failed to do so the opportunity to have the dismissal reviewed by the AJ shall be deemed waived. In her decision the AJ found that because Complainant did not request that these issues be reinstated as set forth in the Acknowledgment and Order, they were no longer an issue. In her appeal Complainant does not contest this. Accordingly, the issues dismissed by the Agency are not before us.
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0120113551
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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