0120091663
06-25-2009
Betty J. Brock, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Betty J. Brock,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120091663
Agency No. DLAN-08-0718
Hearing No. 550-08-00382X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 3, 2009 final action 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant, a Transportation Officer, alleged that the agency discriminated against her on the bases of sex (female), age (55), and in reprisal for prior EEO activity when1:
a. on January 2, 2008, she received a Memorandum for the Record from the Director of Defense Distribution Center Barstow, California (DDCD) regarding a conflict of interest because her husband works for the contracting complaint that she oversees;
b. on January 11, 2008, DDBD removed her from her surveillance duties, one of the major duties of a Transportation Officer;
c. when she, the most senior employee in time and grade was not asked to work overtime on January 12, 19 and 26, 2008;
d. on February 2 and 9, 2008, she was not asked to work overtime;
e. on February 16, 2008, she was not asked to work overtime;
f. on February 22, 2008, complainant was issued a Notice of Proposed Removal.2
Following the investigation into her complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision by summary judgment in favor of the agency. The agency fully implemented the AJ's decision in its final action.
The AJ found that complainant failed to prove by a preponderance of the evidence that she was subjected to discrimination on the bases of sex, age, and in reprisal for prior EEO activity. The AJ further found that complainant failed to show that the agency's articulated, legitimate reasons for its actions were a pretext for discrimination.
The AJ found that a review of the record indicates that a dispute arose in late 2007, when it was determined that a conflict of interest had arisen between complainant and a defense contractor of the Distribution Center. Specifically, the AJ noted that the record reflects that complainant's spouse had begun working for a defense contractor in November 2007, and was directly responsible for constructing and repairing items and equipment used in the traffic management operations of the Distribution Center. The AJ noted that as a Transportation Officer, complainant was responsible for inspecting, monitoring and evaluating the work being performed by her spouse as an employee of a sub-contractor of the defense contractor. The AJ noted that following an investigation, the agency concluded that such a conflict could constitute a violation of agency policy and complainant was counseled, issued a memorandum for the record and her job responsibilities, including her eligibility for overtime assignments, were immediately transferred to other members of the agency's staff, pending further investigation.
The AJ noted that according to the Director (D1) of DDBS, he issued complainant the Memorandum for the Record notifying her that "she had a conflict of interest and if not resolved it would force the agency to propose her removal from the federal service." D1 further stated that after evaluating all the facts and guidance from the DDC Ethics Counselor, "I determined that she could not be allowed to continue performing her assigned oversight duties as a Transportation Officer while her husband is employed with the subcontractor to [Defense Contractor] at DDBC." D1 stated that as a Transportation Officer, complainant "certifies shipments for the government, which includes the packaging/packing of assets (especially hazardous materials). This includes certification that the packaging/packing (box shop items where her husband worked) meet established requirements. As a government employee, she also approves payment/funds to the contractor for the shipments." D1 stated that during the relevant time, complainant was only removed from surveillance responsibilities until the conflict of issue issue was resolved.
Furthermore, D1 stated that complainant could not work overtime because she "was already removed form the contract oversight responsibilities until the conflict of interest issue was resolved. All overtime that was requested was for contractor oversight (which she could not perform) or another function."
The AJ noted in February 2008, it was determined by an Ethics Counselor of the Distribution Center that such a conflict existed in this case, that it violated Title 18 of the United States Code, and that it could not be tolerated under agency policy. Consequently, complainant was issued a Notice of Proposed Removal from her position as a Transportation Officer. The AJ noted that according to D1, he issued complainant the Notice of Proposed Removal "because she was given adequate time to resolve the Conflict of Interest issue and she had not done so." D1 further stated that on February 28, 2008, he received notice that complainant's spouse "no longer worked for the contractor and the Conflict of Interest no longer existed. The final decision was the Notice of Rescission of the Proposed Removal letter." D1 stated that complainant's job functions were then restored, including her eligibility to be considered for overtime job assignments.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, 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 action, 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 unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
June 25, 2009
__________________
Date
1 For purposes of clarity, the Commission has re-lettered complainant's claims as claims a - f.
2 The record reflects that claims d - f were later amended to the instant complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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