0120070871
07-15-2009
Brandy L. Lea, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Brandy L. Lea,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070871
Hearing No. 410-2006-00052X-TGH
Agency No. TSAF 05-9311
DECISION
Complainant filed an appeal from the agency's final action dated October
25, 2006, finding no discrimination with regard to her complaint.
In her complaint, dated July 5, 2005, complainant, a former Federal Air
Marshal at the agency's Atlanta Field Office in College Park, Georgia,
alleged discrimination based on sex (female), disability (hand injury),
and in reprisal for prior EEO activity when:
(1) On March 25, 2005, she received an unfavorable midyear performance
evaluation;
(2) On April 5, 2005, her April 4, 2005 request to transfer to a different
work team was denied; and
(3) On June 16, 2005, her gun and credentials were taken without
explanation.
The record indicates that complainant also alleged four other claims
which occurred in 2003 - 2004, when: in 2003 - 2004, her coworkers
spread sexual rumors about her; in 2004, her gun was malfunctioning
and she was blamed as not sufficiently skilled; in April 2004, she
injured her finger and her ribs during her training in Atlantic City;
and on August 5, 2004, she was forced to sign a light duty contract.
On March 8, 2006, the agency dismissed these claims due to untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
The record indicates that complainant requested a hearing before an EEOC
Administrative Judge (AJ). On June 15, 2006, the AJ issued an order
affirming the agency's dismissal of the four claims occurring in 2003
- 2004. On August 24, 2006, the AJ issued a decision without holding
a hearing, finding no discrimination with regard to claims (1) - (3).
The agency's final action implemented the AJ's order/decision.
With regard to the dismissed claims, the record indicates that the alleged
incidents occurred on or prior to August 5, 2004. Complainant contacted
an EEO Counselor regarding the matters on March 25, 2005, which was
beyond the 45-day time limit set by the regulations. The AJ stated
and we agree that there was no sufficient causal connection between
the accepted claims (1) - (3) and the dismissed claims since they were
discrete acts. Thus, we find that complainant knew or reasonably should
have suspected discrimination at the time of the relevant incident date.
See 29 C.F.R. � 1614.105(a)(2); Ball v. United States Postal Service,
EEOC Request No. 05880247 (July 6, 1988).
On appeal, complainant contends that she contacted an identified EEO
representative and her then supervisor (S1) in March and April 2003,
and September 2004. In response, the agency states that she is raising
this for the first time on appeal and, in fact, the identified EEO
representative was not an EEO Counselor; rather, this individual was
a supervisor in the agency's Atlantic office. There is no evidence in
the record to show that those contacts were intended to further pursue
EEO claims.
S1 indicated that during the relevant time period, in or prior to January
2005, complainant did inform him about the rumors and he then asked
her details of her claim but she did not provide any details and she
did not submit any written statement upon management's request to do so.
Complainant does not indicate that she was in anyway coerced by the agency
not to contact an EEO Counselor during the relevant time period. In fact,
the agency indicates that S1 provided complainant with its EEO office's
contact number in January 2005, but she failed to contact the office at
that time. Complainant acknowledges on appeal that during the relevant
time period at issue, she decided to wait and "trusted" management
to resolve the matter and did not contact "an official EEO Counselor"
until March 25, 2005, i.e., after she received the unsatisfactory midyear
performance, described in claim (1). The AJ indicated, and we agree,
that there is no indication in the record to show that the alleged rumors
occurred beyond 2004. Based on the foregoing, we find that complainant
failed to present adequate justification to warrant an extension of
the applicable time limit for contacting an EEO Counselor with regard
to the alleged incidents occurring in 2003 - 2004. Therefore, we find
that the agency's decision to dismiss those claims was proper.
Turning to claims (1) - (3), 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.
Despite complainant's contentions on appeal, the Commission, upon
review, finds that grant of summary judgment was appropriate, as
no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. With regard to claim
(1), complainant's then supervisor (S3) indicated that complainant's
alleged performance review was largely positive, stating that she met
satisfactory performance, but it also correctly noted that she had
a history of difficulty getting a qualifying score with her firearm.
Complainant does not dispute this although she claims that it was due
to her weapon's malfunction and an injury to her finger.
With regard to claim (2), complainant's then acting supervisor (S4)
stated that he denied complainant's transfer request because: (1) he did
not make it a practice to transfer employees who were unhappy with their
supervisors; (2) it appeared that complainant was requesting a transfer
because she was unhappy with the recent performance review and he did
not feel it was appropriate to transfer her for that reason; and (3)
complainant did not provide any specifics to support her assertion that
S3 was mistreating her or had some improper motivation in his dealings
with her.
With regard to claim (3), during the relevant time period, complainant
was on extended medical leave after she had her third surgery on her
finger on April 26, 2005. When S4 was informed of complainant's extended
medical leave, he instructed S3 to retrieve her gun and credentials
because he believed that it was not a good idea for an air marshal to
be carrying a gun and credentials when he or she is physically unable
to perform the duties of his or her position. S4 stated that if and
when complainant would have returned to full duty, her weapon and law
enforcement credentials would have been returned. The agency notes
that complainant, subsequently, requested and received leave without
pay from June 2005, and until when she resigned on October 1, 2005,
in order to take care of her husband who had knee surgery.
After a review of the record, we agree with the AJ's determination that
complainant failed to rebut the agency's legitimate, nondiscriminatory
reasons for the alleged incidents. We find that complainant failed
to show that she was treated less favorably than a similarly situated
employee under similar circumstances. In this case, complainant has not
claimed that she was denied a reasonable accommodation or that she was
made to work beyond her medical limitations. Here, we do not address
whether complainant is a qualified individual with a disability.
Accordingly, the agency's final action dismissing the claims occurring
in 2003 - 2004, and finding no discrimination regarding claims (1) -
(3) is AFFIRMED.
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
7/15/09
__________________
Date
2
0120070871
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013