01a50137
04-27-2005
Concepcion A. Guzman, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Concepcion A. Guzman v. Department of the Army
01A50137
April 27, 2005
.
Concepcion A. Guzman,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A50137
Agency No. BGANFO0009A0240
Hearing No. 100-2002-7008X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Medical Technologist, GS-644-091, at the agency's Rapid
Response Laboratory, Department of Pathology, Walter Reed Army Medical
Center (WRAMC) in Washington, D.C. filed a formal EEO complaint on
September 26, 2000.
On May 17, 2001, the agency issued a document entitled �Notice of
Acceptance/Dismissal.� Therein, the agency determined that the instant
complaint was comprised, in part, of the following claim:
On May 16, 2001, while working with a microscope located in an
accessioning area, complainant was told by her supervisor. . . to move
to the next room that contained a microscope and a telephone so that
she could answer the phone whenever it rang.
The agency dismissed this claim for failure to state a claim, while
accepting other matters for investigation.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the
alternative, a Motion For Findings and Conclusions Without a Hearing.
On August 9, 2004, the AJ issued a decision without a hearing. Therein,
the AJ noted that complainant alleged discrimination on the bases of
race (Asian American), national origin (Filipino), color (brown), sex
(female), age (d.o.b. 11/12/44) and in reprisal for prior protected
activity, in the following four claims:
1. On August 14, 2000, complainant became aware that she was not
selected for the position of Medical Technologist, GS-0644-11, under
Vacancy Announcement No. NC1426-00-WR;
2. The agency purportedly subjected complainant to harassment because
of her membership in the relevant protected classes when:
a.. On September 1, 2000, an agency official witnessed an assault
involving complainant and a co-worker and took no action against the
co-worker.
b. On September 7, 2000, the agency official accused complainant
of initiating the September 1, 2000 confrontation and indicated that
he possessed statements from a witness who indicated that complainant
initiated the incident.
c. On September 7 and 8, 2000, the agency official denied complainant's
request to take several hours of administrative leave to file criminal
charges against the co-worker, only allowing complainant to leave during
her lunch period on September 8, 2000, to file such charges.
d. On January 11, 2001, the agency official issued complainant a Notice
of Proposed Suspension for Conduct Unbecoming a Federal Employee/Creating
a Disturbance;
3. On April 16, 2001, after mitigating the proposed suspension, the
agency issued complainant a written reprimand for Conduct Unbecoming a
Federal Employee/Creating a Disturbance; and
4. On September 21, 2001, complainant received an unfavorable mid-term
evaluation.
The AJ found no discrimination regarding all four claims. Regarding claim
(1), the AJ noted that the selectee for the subject position was the
highest rated candidate; that complainant was not placed on the referral
list because of her own dilatory conduct in submitting application
materials; and that even after the agency offered her an interview for the
position, she did not demonstrate that her qualifications were superior
to those of the selectee.
Regarding that portion of claim (2) relating to the altercation, the AJ
noted that the agency carefully investigated the altercation, gathered
relevant evidence, interviewed witnesses, and carefully deliberated
the facts and circumstances, and imposed a reasonable discipline upon
complainant. The AJ determined, moreover, that there was no competent
evidence relating the agency actions to complainant's protected classes
and that the agency's actions, in any event, did not rise to the level
of severe or pervasive harassment.
Regarding that portion of claim (2) relating to the denial of
administrative leave, the AJ determined that pursuant to its policy,
the agency granted complainant a reasonable amount of requested annual
leave to file criminal charges, but that complainant requested more.
The AJ found that complainant did not demonstrate that similarly
situated employees, not in her protected classes, were afforded different
treatment.
Regarding claim (3), the AJ found that an agency may discipline an
employee for conduct it has determined is unbecoming; and that complainant
did not demonstrate that the discipline imposed on her was harsher than
that imposed on comparably situated employees.
Regarding claim (4), the AJ determined that there existed no competent
evidence that the agency's actions were related to complainant's protected
classes; and that the agency articulated that the mid-term review issued
to complainant was appropriate given its determination of misconduct,
negatively reflecting on complainant's ability to work with co-workers.
The agency implemented the AJ's decision in a final action dated September
8, 2004.
Claims (1) - (4)
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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 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, the agency's final action implementing the AJ's decision
concerning claims (1) - (4) was proper and is AFFIRMED.
Claim Dismissed by the Agency on May 17, 2001
The record reveals that complainant raised a separate claim (that was the
subject of an agency Partial Dismissal in May 2001) wherein she claimed
that she was discriminated against on the bases of race, national origin,
color age, and in reprisal for protected activity when on May 16, 2001,
her supervisor approached her as she was looking in the microscope located
accessioning area. Complainant claimed that her supervisor instructed
her to move to the next room and use the microscope in that room so that
she could answer the telephone whenever it rang. Complainant claimed that
her supervisor's instructions were not consistent with her job description
or job duties, and that these actions are part of a continuing pattern
of harassment.
The Commission determines that complainant has not established that
her claim resulted in a personal harm or loss to a term, condition
or privilege of her employment. Moreover, we find that the alleged
incident described by complainant is not sufficiently severe or pervasive
to state a claim of discriminatory harassment. See Cobb v. Department
of Treasury, EEOC Request No. 05970077 (March 13, 1997). Therefore, we
find that the agency properly dismissed complainant's claim for failure
to state a claim.
Accordingly, the agency's dismissal of complainant's May 16, 2001 claim
is AFFIRMED.
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
April 27, 2005
__________________
Date