0120072646
05-20-2009
Cozetta Duckwiley, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Cozetta Duckwiley,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120072646
Hearing No. 440-2007-00023X
Agency No. 06RSPBSCD11
DECISION
On May 11, 2007, complainant filed an appeal from the agency's April
13, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Budget Technician, GS-5, at the agency's Chicago, Illinois facility.
On May 20, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the basis of her disability (upper respiratory
condition) when: (1) management reassigned her to the position of Clerical
Assistant, GS-5, which was slated to be subject to an outsourcing study,
as a means of eventually removing her from employment with the agency;
(2) on May 18, 2005, management denied her a reasonable accommodation
by no longer allowing her to work from home; and (3) management did not
allow her the opportunity to compete for a promotion.
By letter dated June 20, 2006, the agency dismissed claims (2) and
(3), pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. At the conclusion of the investigation of the remaining claim,
complainant was provided with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. The AJ found that,
after viewing the evidence in the light most favorable to complainant,
a decision without a hearing was appropriate as there were no genuine
issues of material fact in dispute. Accordingly, the AJ issued a
decision without a hearing on April 2, 2007, finding no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. On appeal, complainant reiterates her contention that she
was subjected to unlawful discrimination.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). We turn next to the issue of the agency's dismissal
of claims (2) and (3). Upon review of the record, we find that these
claims are more properly dismissed under 29 C.F.R. � 1614.107(a)(1).
With respect to claim (3), we find that complainant's claim is too
vague to state a claim under the EEOC regulations. We note that not
only does complainant fail to provide the specific dates of the alleged
discrimination but she also does not identify specific promotions she was
allegedly denied. As to claim (2), the record reflects that complainant
previously filed a union grievance on this same issue, and we find that
this claim should therefore be dismissed for raising the same matters
that were the subject of grievances in a negotiated grievance procedure
that permits allegations of discrimination. (Agency's Response in
Opposition to Complainant's Appeal, Exhibits E; F; G; H). Accordingly,
we find that the agency properly dismissed claims (2) and (3) for the
reasons set forth herein.
With respect to the remaining claim, 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, it is not appropriate
for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. Petty v. Defense Security Service,
EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. 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). She must generally establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that assuming, arguendo, complainant established a prima
facie case of disability discrimination, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the record reflects that complainant was placed in a detail, at her
request, to the Clerical Assistant position on January 24, 2006.
By notice dated February 17, 2006, complainant was informed that the
agency was going to resume its "competitive sourcing study for the
administrative support activities" in complainant's region. (R.O.I.,
Exhibit 18). The Lead Human Resources Specialist stated that the study
was "an effort to examine administrative support functions within the
agency to determine whether there would be a cost savings by contracting
[that] work to outside companies." (R.O.I., Exhibit 10). The record
reflects that although the position at issue was originally slated to be
part of this outsourcing study, complainant was specifically exempted
from the study based upon the certification of her disability by the
Illinois Department of Human Services. (R.O.I., Exhibit 7; 8; 9; 19).
Accordingly, we find that complainant has proffered no evidence to show
that the agency's articulated reasons are pretextual or that the agency's
actions were motivated by discriminatory animus toward her disability.
We concur with the AJ's finding that complainant failed to show that
she was subjected to unlawful discrimination.
We find that viewing the record evidence in the light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order isAFFIRMED.
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
May 20, 2009
Date
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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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