01a42387
07-29-2005
Doretha A. Jones-Mason, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Doretha A. Jones-Mason v. Department of Energy
01A42387
July 29, 2005
.
Doretha A. Jones-Mason,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A42387
Agency No. 99(012)OR
Hearing No. 250-99-8198X
DECISION
Initially, the record indicates that complainant filed her complaint on
December 1, 1998, alleging discrimination based on race (African-American)
and in reprisal for prior EEO activity. On February 8, 1999, the agency,
accepting the complaint for investigation, defined the complaint as
alleging that complainant was discriminated against based on race
and in reprisal for prior EEO activity when after being selected to
the position of Personnel Staffing Specialist, GS-212-7, the position
description was changed and her promotion was made conditional based
upon a development plan. Complainant did not challenge the agency's
framing of the complaint.
After completion of the investigation of the complaint, on June 15, 1999,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Prior to a hearing, on April 4, 2000, AJ1 issued an order permitting
complainant to amend the complaint to include the termination issue
and ordering the agency to investigate the same. Meanwhile, the case
was transferred to AJ2, who issued a decision dated April 18, 2001,
without a hearing finding no discrimination concerning complainant's
position description/promotion issue, described in her original complaint.
AJ2 did not address the termination issue in that decision. On May 14,
2001, the agency issued its final action implementing the AJ2's decision.
Complainant appealed that decision.
In EEOC Appeal No. 01A14338 (July 11, 2002), the Commission vacated
the agency's May 14, 2001 final action and remanded the case back to
the agency. Specifically, the Commission found that the agency failed to
allow complainant to amend her complaint adding the termination issue and
investigate the same in accordance with the AJ1's April 4, 2000 order.
The Commission remanded the case to the EEOC Hearings Unit for further
proceedings accordingly. The agency, subsequently, filed request for
reconsideration, which was denied by the Commission, in EEOC Request
No. 05A21070 (December 9, 2002).
The record indicates that complainant was terminated from her employment
at the agency on May 27, 1999. On June 16, 1999, complainant filed
an appeal to the Merit Systems Protection Board (MSPB) concerning her
termination under MSPB Docket Number: AT-0752-99-0628-I-1. Thereafter,
on September 28, 1999, the parties entered into a settlement agreement
resolving the MSPB appeal which provided, in pertinent part, that:
[Complainant] and DOE [the agency] do hereby settle all claims, issues,
complaints, or actions arising out of [complainant]'s complaint styled
Doretha Jones-Mason v. DOE, MSPB Docket No.: AT-0752-99-0628-I-1.
The parties understand that [complainant] intends on pursuing an EEO
complaint against DOE. This settlement agreement only resolves the
issues raised in the complaint styled Doretha Jones-Mason v. DOE, MSPB
Docket Number: AT-0752-99-0628-I-1, and does not preclude [complainant]
from pursuing an EEO complaint against DOE.
In the agreement, the agency �submits� that complainant's removal for
falsification of official government documents was proper, and agreed to
pay complainant $14,078.02 and attorney's fees in the amount of $1,450.00.
The record indicates that on December 5, 2003, AJ2 issued a decision
indicating that his April 18, 2001 decision, although properly no
discrimination concerning complainant's promotion, failed to address
the termination issue. Specifically, AJ2 stated that AJ1, at the time
of his April 4, 2000 order, was not aware that complainant had filed
an MSPB appeal concerning her termination on June 16, 1999, which was
subsequently settled. Thus, AJ2 dismissed the termination issue for
lack of jurisdiction on the grounds that the subject matter constituted
a mixed case complaint to which there was no right to an EEOC hearing.
On February 26, 2004, the agency, implementing AJ2's decision, issued
its decision dismissing the complaint for raising the same matter in
an appeal to the MSPB. Complainant filed the instant appeal from the
agency's February 26, 2004 decision.
Termination
The record indicates that complainant filed an appeal to the MSPB
with regard to her termination at issue on June 16, 1999, which was
subsequently settled on September 20, 1999. Complainant, however,
contends on appeal that under the MSPB settlement agreement, she is
allowed to pursue the same termination issue through the EEO complaint
process. Upon review, the Commission finds that the MSPB settlement
agreement did not specifically provide that she can pursue an EEO
complaint against the agency concerning the termination issue. The MSPB
settlement agreement merely provided that complainant can pursue an EEO
complaint against the agency. The MSPB settlement agreement settled
all claims arising out of the MSPB appeal. The MSPB appeal concerned
complainant's termination. Therefore, any claim, including any EEO claim,
regarding the termination was settled in the MSPB settlement agreement.
Based on the foregoing, the Commission finds that the agency's dismissal
of the termination issue on the grounds that an election had been made
to raise the same matter in an appeal to the MSPB is proper pursuant to
29 C.F.R. � 1614.107(a)(4).
Position Description/Promotion
Initially, the Commission notes that since the agency's finding of no
discrimination concerning the position description/promotion issue was
not reviewed in complainant's previous appeal in EEOC Appeal No. 01A14338
(July 11, 2002), the issue will be reviewed in this decision. On April
18, 2001, AJ2issued a decision concerning this subject matter without
holding a hearing, finding no discrimination. The AJ2 noted that he
ordered complainant to show cause why a decision without a hearing
should not be issued, including a list of her witnesses, but she failed
to respond.
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.
Upon review, the Commission finds that the AJ2s grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
AJ2noted that on July 5, 1998, complainant applied and was selected for
the position of Personnel Staffing Specialist, GS-212-7, at issue, with
two other Personnel Assistants. This position had promotion potential to
the GS-9 level. Complainant claimed that she was initially informed that
she would receive a new performance plan and training to prepare her for
her new position. However, she was instead, reassigned to a new position
description on August 30, 1998, under �Reassignment-Reclass� procedures.
Complainant was also told that she would not be promoted for at least
a year.
AJ2stated that complainant admitted that two other individuals who were
promoted into the same position as she was during the relevant time
period were subjected to the same conditions. Complainant's supervisors
also stated that the job to which these three women were promoted was
a new job description and thus, no one, other than these three, was
similarly situated to complainant. The supervisors also stated that
the position at issue was a new position and because these selectees
did not meet the qualifications at the GS-9 level, they must undergo
some type of development process to meet the full performance level.
Based on the foregoing, AJ2 determined that complainant failed to
satisfy her burden of proving that she was discriminated against based
on race or in reprisal for prior EEO activity concerning the position
description/promotion issue.
Accordingly, the agency's final action dismissing the termination issue
and finding no discrimination on the position description/promotion
issue is AFFIRMED.
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
July 29, 2005
__________________
Date