Deanv.Ray, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Information Systems Agency), Agency.

Equal Employment Opportunity CommissionMay 8, 2008
0120063401 (E.E.O.C. May. 8, 2008)

0120063401

05-08-2008

Dean V. Ray, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Information Systems Agency), Agency.


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