01A50357_r
01-26-2005
Chatigny L. Davis, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Chatigny L. Davis v. Department of the Army
01A50357
January 26, 2005
.
Chatigny L. Davis,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A50357
Agency No. AWGHFO990J0040
Hearing No. 280-2004-00133X
DECISION
Complainant initiated an appeal from the agency's final order concerning
her equal employment opportunity (EEO) complaint of unlawful 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. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Realty Specialist, GS-1170-09 at
the agency's Kansas City, Missouri facility during the relevant time<1>,
filed a formal EEO complaint on August 13, 1999, alleging that the
agency discriminated against her on the bases of race (Black) and sex
(female) when:
(1) For a two-year period from 1997 through 1999, complainant was
denied a promised promotion from a GS-9 Realty Specialist to a GS-11
Realty Specialist;
Complainant was denied compensation for work she performed at the GS-11
level; and
Complainant was denied a temporary promotion to a GS-11 Realty Specialist
position when other GS-11 Realty Specialists were detailed into GS-12
positions.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ)<2>. The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race or sex discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances. The AJ found that complainant did not establish
that complainant's position could have been non-competitively promoted
to GS-11, nor has complainant shown pretext in connection with the
reason given to her for the agency's failure to promote her, namely,
that she could not be promoted until the agency's unit was reorganized.
Further, the AJ found that complainant did not show that other employees
in complainant's position, but not in complainant's protected classes
were promoted non-competitively during the time in question.
Regarding complainant's claim that she should have been compensated
for performing GS-11 duties while serving as a GS-9 Realty Specialist,
complainant has not shown that other employees, not in her protected
classes, were compensated for performing work outside of their assigned
grades.
Lastly, regarding complainant's claim that she should have received a
temporary promotion when other GS-11 employees were detailed to GS-12
positions, the AJ found that complainant did not establish that the
temporary promotion of one employee creates a vacancy for another
temporary promotion to the position left by the detailed employee,
nor did the AJ find that complainant identified other employees who
received temporary promotions as a result of any such temporary details.
The agency's final order implemented the AJ's decision.
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.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We concur with the AJ that the re-classification of
complainant's position is a matter for the Office of Personnel Management,
if that were the essence of complainant's claim, complainant should have
requested a classification audit. Rather, complainant has not identified
other employees, not in her protected classes, who were also promised
a promotion and were, in turn, promoted to GS-11. Nor has complainant
shown that other Realty Specialists in GS-9 positions, did work at the
GS-11 level but, unlike complainant, were differently compensated for
their higher graded work. Additionally, we find complainant has not
shown that the detailing of an employee to a GS-12 position created a
vacancy at the GS-11 level, the agency then had an opportunity to fill.
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes.
Accordingly, we AFFIRM the agency's final order, fully implementing the
AJ's summary decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
January 26, 2005
__________________
Date
1The record shows that during the pendency of this matter complainant
accepted a position with another agency in 1999.
2Approximately four years elapsed between the time complainant
requested a hearing in June 2000 and the time the Commission received
the investigative file from the agency in March 2004.