0120063401
05-08-2008
Dean V. Ray,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Information Systems Agency),
Agency.
Appeal No. 01200634011
Hearing No. 100-2005-00801X
Agency No. DOD-DISA-HQ-04-013
DECISION
Complainant filed an appeal from the agency's final action dated April
10, 2006, finding no discrimination with regard to her complaint.
In her instant complaint, dated September 23, 2004, complainant, a
Procurement Analyst, GS-1102-12, within the agency's GIG-Operations
Directorate, alleged discrimination based on race (African-American),
disability (depression), and in reprisal for prior EEO activity when:
(1) she was not promptly reinstated after the agency notified her that
her clearance was renewed; and (2) she was denied back pay with the
exception of a limited period of time.2
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
13, 2006, the AJ issued a decision without holding a hearing, finding
no discrimination and dismissing a portion of the claims for alleging
the same matters that had previously been decided by the agency.
The agency's final action 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.
The Commission 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.
The record indicates that complainant's position required a minimum
secret security clearance. In October 2001, complainant told her
supervisor that she was suffering from depression related to personal
and financial problems. Thereafter, on January 2, 2002, the agency
indefinitely suspended complainant without pay effective January 13,
2002, following a decision by WHS/CAF, the Department of Defense component
responsible for security clearance determinations for civilian employees
at the agency, to suspend complainant's access to sensitive material.
Upon appeal, on May 15, 2002, the Merit Systems Protection Board (MSPB)
found the agency provided complainant with all the process required by
law in effecting her indefinite suspension.
The record also indicates that on January 3, 2003, complainant filed an
EEO complaint (prior to the instant complaint) alleging discrimination
when she was placed on indefinite suspension without pay when her secret
security clearance was withdrawn on January 13, 2002, and when management
failed to process her adjudication in a timely manner. On January 22,
2003, the agency issued its final decision dismissing the complaint due
to untimely EEO Counselor contact and for failure to state a claim.
Based on the documentation provided by complainant and the results of
the medical evaluation, on May 13, 2004, WHS/CAF found that complainant
was eligible for a security clearance because her depression had been
in remission with medication since February 2002. On May 24, 2004, the
agency forwarded WHS/CAF's decision to complainant and advised her of the
conditions of her reinstatement. The agency received complainant's signed
acknowledgement on June 9, 2004. A Request for Personnel Action (SF 52)
was issued on July 15, 2004, noting that complainant was returned to duty
effective June 9, 2004. On July 16, 2004, complainant's supervisor issued
a Return to Duty Order, directing her to return to duty no later than July
25, 2004. On the same day, a Notification of Personnel Action (Standard
Form 50) was issued returning complainant to duty effective June 9,
2004, and providing for back pay from her return to duty to June 9, 2004.
The AJ initially stated that in the instant case, complainant claimed
that she was subjected to discrimination when her security clearance
was removed during February 2002 and was not reinstated until 2004.
Specifically, complainant claimed that she received a WHS/CAF favorable
adjudicative determination on May 13, 2004, which stated that she
had been in remission with medication since February 2002, but she
was not reinstated to her position of employment until July 26, 2004.
The AJ stated that as described above, complainant previously filed
her January 2003 complaint, alleging her placement on an indefinite
suspension without pay during the revocation of her security clearance
and management's failure to process her adjudication in a timely manner.
We agree with the AJ's dismissal of the foregoing claims for stating the
same claims that had been previously decided by the agency. 29 C.F.R. �
1614.107(a)(1).
The AJ indicated that complainant also alleged in the instant complaint
that her supervisor failed to return her to duty until July 26, 2004,
as a result of intentional discrimination. Specifically, complainant
claimed that that she should have been returned to duty, retroactive
to February 2002, within 24 hours of the restoration of her security
clearance during 2004. The agency stated that after the receipt of
the favorable WHS/CAF determination on May 24, 2004, they sent that
notification to complainant pursuant to the agency practice and her
return to duty was delayed pending receipt of her acknowledgment of the
security conditions to her reinstatement.
Complainant's supervisor also stated that he was seeking an appropriate
position to return complainant into since procurement specialists had
been realigned from GIG-OPS to the Procurement Logistics Directorate.
He explained that a portion of the delay in returning complainant
to duty was also caused by the fact that he was on leave for 18 days
between May 25 and July 16, 2004. The supervisor also explained that he
wanted to "get it right" and not rush the process especially since he
knew complainant would receive back pay to the date of acknowledgment,
which was June 9, 2004.
With regard to the denial of back pay due to her initial February 2002
suspension, the AJ stated that this claim was properly dismissed for
stating the same claim that had previously decided by the agency. The AJ
also found that complainant also claimed in the instant case that WHS/CAF
determined that she was eligible to have access to sensitive material as
early as May 13, 2004, when her security clearance was reinstated, but
she was not paid until June 9, 2004. The agency stated that its policy
provided that an employee was eligible to receive back pay from the time
that they were eligible to return to duty to when he/she was actually
restored to duty. In the instant case, complainant was eligible to return
to duty when the agency received her signed acknowledgment of receipt of
the WHS/CAF favorable decision and attached memorandum on June 9, 2004.
Based on the foregoing, the AJ determined and we agree that complainant
failed to show that she was subjected to either disparate treatment or
harassment as a result of intentional discrimination. The Commission
agrees with the AJ that complainant failed to rebut the agency's
legitimate, nondiscriminatory reasons for the alleged actions.
Furthermore, assuming (without deciding) that complainant was an
individual with a disability, we note that she has not claimed that she
was denied a reasonable accommodation; nor is there any indication that
she was required to work beyond her medical restrictions.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
5/8/08
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Complainant characterized this as a hostile work environment complaint.
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0120063401
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036