01A32194_r
12-17-2004
Cynthia Dumas v. Department of Defense (Defense Intelligence Agency)
01A32194
December 17, 2004
.
Cynthia Dumas,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Intelligence Agency),
Agency.
Appeal No. 01A32194
Agency No. 00-DA-02
Hearing No. 100-A1-7601X
DECISION
Complainant timely 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 finding no discrimination.
The record reveals that complainant, an Administrative Assistant at the
agency's Office of Security and Counterintelligence, Counterintelligence
Division (DAC-1), Joint Counterintelligence Support Branch (JSBISB),
Counterintelligence and Security Activity, Directorate for Administration
(DA), Virginia facility, filed an EEO complaint on January 5, 2000,
alleging that the agency discriminated against her on the bases of race
(African-American) and sex (female) when:
On October 6, 1999, complainant's supervisor made disparaging remarks
about a female's physical appearance and made jokes about a co-worker's
ethnicity.
Complainant's complaint further alleged that she was subjected to reprisal
after she voiced her objection to the above-described discrimination to
agency management. The incidents of reprisal include the following:
Complainant's requests for overtime and compensatory time were denied;
Complainant's performance standards were changed;
Complainant's performance was rated unsatisfactory; and
Complainant was held to different standards than others regarding time
and attendance.
Complainant subsequently amended her complaint (twice) to include
allegations that she was subjected to continued reprisal when:
Complainant received a Letter of Instruction, dated January 3, 2000;
Complainant was given an interim performance counseling letter dated
March 6, 2000; and
Complainant was terminated, effective September 9, 2000 for poor
performance.<1>
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 AJ issued a decision without a hearing, finding no
discrimination. In his decision, the AJ adopted and incorporated the
agency's statement of the material facts as set forth in the agency's
Motion for Summary Judgment.
The AJ concluded that, regarding her initial complaint of harassment,
complainant failed to allege conduct that was either sufficiently severe
or pervasive enough to alter the terms and conditions of complainant's
employment. The AJ found complainant failed to establish a prima facie
case of harassment based on sex or race, when complainant's supervisor
made comments about a female agency employee's appearance, nor when
her supervisor commented on a co-worker's ethnicity. The AJ noted that
complainant was not the target of either comment and that the comments
made were isolated remarks.
Regarding complainant's reprisal claim, the AJ found that in its Motion,
the agency articulated legitimate, non-discriminatory reasons for each
of the agency actions, about which complainant complained, including the
agency's reasons for ultimately terminating complainant from her position.
The AJ found that complainant failed to produce any evidence of pretext.
Accordingly, the AJ found that complainant failed to prove, more likely
than not, that discrimination had occurred as alleged. 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 find that the AJ's decision (incorporating the facts as set
forth in the agency's Motion for Summary Judgement) properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Specifically, we find complainant failed to identify any
similarly situated individuals, not in complainant's protected classes,
who were treated any better than complainant was treated. On the contrary,
we find the evidence supports the agency's evaluation of her performance,
and legitimate efforts to address what it deemed to be deficiencies in
her time and attendance record. 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.
We therefore AFFIRM the agency's final order fully implementing the AJ's
finding of 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
December 17, 2004
__________________
Date
1In her June 6, 2000 amendment to her
complaint, complainant alleged discrimination on the basis of reprisal
when she was given a sustained unsatisfactory performance rating on May
24, 2000, and then a notice of proposed removal, dated May 25, 2000,
based in large part, on the unsatisfactory rating. The record indicates
that ultimately, the proposed removal became effective September 9, 2000.