01a51306
05-18-2005
Ellen Pomeroy, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Ellen Pomeroy v. Social Security Administration
01A51306
5/18/05
.
Ellen Pomeroy,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A51306
Agency No. 03-0351
Hearing No. 340-2004-00270X
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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, we AFFIRM the agency's final order.
The record reveals that complainant, a Management Support Specialist at
the agency's San Diego, California facility, filed a formal EEO complaint
on June 25, 2003, alleging that the agency discriminated against her on
the bases of race (Caucasian) and age (D.O.B. 12/22/49) when:
(1) on May 4, 2003, she was involuntarily reassigned from her former
position as an Operations Supervisor GS-195-12 in the Linda Vista Branch
Office to the position of Technical Expert, GS-105-12, in the San Diego
District Office;
she was subjected to a hostile work environment when the following
occurred: (a) when the Branch Manager embarked on a campaign to
increase complainant's supervisory responsibilities, even including
such areas such as SSI, in which complainant had little experience;
(b) the Branch Manager subjected complainant to verbal ridicule,
scolding, and criticism for allegedly performing too slowly or
inefficiently; (c) the Branch Manager denied her opportunities to
enter into management decision-making process; (d) the Branch Manager
assigned her non-managerial tasks generally performed by staff; and (e)
the Branch Manager accused complainant of ineffectual interactions with
staff, the public, and a Korean newspaper journalist.
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.
Although the AJ found complainant established a prima facie case of
discrimination with respect to her performance appraisal, she failed
to establish that the agency's reasons for its actions were a pretext
for discrimination. Furthermore, the AJ concluded that she failed to
establish that the agency acted with any discriminatory bias against
complainant's race, sex or age. As for her hostile work environment
claim, that AJ found that complainant failed to establish the Branch
Manager conduct was severe or pervasive.
On October 28, 2004, the agency issued a final order that implemented
the AJ's decision.
On appeal, complainant contends that the AJ erred when she determined
there were no material facts in dispute. She argues that the AJ failed
to examine her claim that the Branch Manager created a hostile work
environment, which included the assignment of more job duties than
other employees.
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.
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. Furthermore, construing the evidence
in complainant's favor, we do not find that she established the Branch
Manager's conduct rose to the level of a hostile work environment.
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
5/18/05
Date