01996786
02-13-2001
Debbie S. Davenport, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Debbie S. Davenport v. Department of the Army
01996786
February 13, 2001
.
Debbie S. Davenport,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01996786
Agency No. 96-03G-0040
Hearing No. 240-97-5097X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<1>
Complainant alleges she was discriminated against in reprisal for prior
EEO activity when:
Complainant was issued memoranda identified as counseling sessions;
Complainant was subjected to adverse working conditions (�negative
comments� discussing her character, work, and performance);
Complainant was denied reassignment; and
Complainant did not receive a Special Act Award.
The record reveals that during the relevant time, Complainant was
employed as a secretary at the agency's Fort Campbell, Kentucky facility.
Complainant filed a formal complaint on May 20, 1996. At the conclusion
of the investigation, complainant was provided a copy of the investigative
file and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision dated September 3, 1997, without a hearing
finding no discrimination. The AJ concluded that complainant failed to
establish a prima facie case of reprisal discrimination, noting that she
failed to show that she was subjected to an adverse action 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. An issue is "genuine" if the evidence is such that
a reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, complainant has failed
to establish the essential elements of his or her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988).
Our review of a case where summary judgment has been granted under
29 C.F.R. � 1614.109(g) is de novo. EEOC Management Directive (MD) -
110, Ch. 9, Sec. VI(B)(4)(b) (November 9, 1999). The Commission finds
that the AJ erred when she concluded that there was no genuine issue
of material fact in this case. In finding no discrimination, the AJ
adopted the agency's statement of fact and argument set forth in its
motion for summary disposition. In its motion for summary disposition,
the agency only argued that none of the accepted issues identified
in the complaint rose to the level of an adverse employment action.
Specifically, we find that the denial of reassignment and the denial of
an award constitute adverse agency actions. Furthermore, the Commission
finds that throughout the processing of this complaint, complainant has
alleged continuing harassment by agency management officials. Complainant
specifically alleged harassment in her formal EEO complaint and referred
to harassment in her investigative affidavit. Therefore, we find that
the AJ erred when she issued a recommended decision without a hearing,
and the agency decision which adopted the AJ's decision must be reversed.
Accordingly, the Commission REVERSES the agency's final action and
REMANDS the matter to the agency in accordance with this decision and
the ORDER below.
ORDER
The agency is ordered to perform the following:
Within 15 calendar days of the date this decision becomes final, contact
the relevant EEOC District Office in writing to schedule a hearing on
the merits of the remanded claims.
Send a copy of the letter referenced in provision 1 of this Order to
complainant and to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
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
February 13, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1This appeal was previously dismissed by the Commission on the grounds
that complainant filed a civil action in the U.S. District Court for
the Middle District of Tennessee raising the same issues identified in
her EEO complaint. Davenport v. Department of the Army, EEOC Appeal
No. 01980787 (April 2, 1998). The record reveals that on March 1, 1999,
complainant's civil action was dismissed by the district court without
prejudice. Thereafter, complainant sought reinstatement of her case.
In accordance with Commission precedent, we accept the present appeal.