01A12667
08-08-2002
Diane M. De Rose, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Diane M. De Rose v. Defense Logistics Agency
01A12667
August 8, 2002
.
Diane M. De Rose,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A12667
Agency No. DCP-00-001
Hearing No. 120-AO-7937X
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.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Wage Specialist, GS-0223-7, at the
agency's Civilian Personnel Management Service, Wage and Salary Division,
filed a formal EEO complaint on April 6, 2000, alleging that the agency
had discriminated against her on the bases of race (Caucasian), color
(white), sex (female), and disability (post traumatic stress disorder
and herniated disc) when:
(1) On March 13, 2000, complainant received a memorandum placing her
on administrative leave without providing an explanation as to why; and,
Complainant received a letter in the mail dated March 14, 2000, which
terminated her from Federal Government Service.
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.
The AJ assumed, arguendo, that complainant established a prima facie
case of discrimination on the alleged bases, and found that the agency
proffered legitimate, nondiscriminatory reasons for its actions. As to
issue one, the AJ noted that complainant's supervisor (S1) stated that
complainant was put on administrative leave because of her misconduct
and performance on the job. S1 gave examples, including personal use
of an agency cellular phone, ignoring specific directions by her Team
Leader, belligerence toward her supervisor, and being disruptive at work.
Complainant's second line supervisor (S2) said complainant was placed
on administrative leave because she refused to follow his instructions.
As to issue two, S2 explained that complainant was terminated during her
probationary period because �she failed to demonstrate qualifications
for continued employment.� In reaching this conclusion, the AJ noted
that complainant failed to proffer evidence in support of her complaint
from which he could conclude that the agency discriminated against her
in any way.<1> The agency's final action implemented the AJ's decision.
Complainant makes no new contentions on appeal. The agency requests
that we affirm the FAD.
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.
Here, the AJ correctly determined that there is no genuine issue of
material fact as to whether complainant was subjected to discrimination
on any of the alleged bases. In so finding, we note that even assuming,
arguendo, that complainant established a prima facie case on all of the
alleged bases, she failed to raise a genuine issue as to the agency's
legitimate, nondiscriminatory reason for its actions. Complainant failed
to adduce any evidence in support of her contention that a discriminatory
animus motivated the agency's actions.
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 properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, 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. Therefore, we affirm the agency's final decision.
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
August 8, 2002
__________________
Date
1 The record of investigation (ROI) contains complainant's unsigned
affidavit. The record also indicates that complainant's counsel informed
the EEO Investigator on July 24, 2000, that complainant was not willing
to sign her affidavit. See ROI, Investigator's Memorandum, dated July
24, 2000. The AJ indicated that he disregarded the affidavit because
complainant specifically disavowed it. See AJ's Decision, at 3.