0120113577
08-14-2012
Gloria E. Oxley, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Gloria E. Oxley,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113577
Hearing No. 430-2009-00384X
Agency No. ARFTEUST08AUG03408
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 29, 2011 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Recreation Assistant at the Agency's U.S. Army Garrison, Directorate of Family Morale, Welfare and Recreation, McClellan Fitness Center at Fort Eustis, Virginia.
On September 23, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior protected activity when:
a. on July 21, 22 and 23, 2008, her supervisor placed her on Absent Without Leave (AWOL) status; and
b. on August 4, 2008, she was removed from her position for "abandonment of position" effective July 20, 2008.
The record reflects that on October 23, 2007, Complainant suffered an on-the-job injury. Complainant's claim was approved by the Office of Workers Compensation Program. The record further reflects that the Agency placed Complainant on light duty as a result of this injury. This assignment was unsuccessful and as a result, Complainant's physician restricted her from working. On or around June 25, 2008, Complainant provided the Agency with a note dated June 20, 2008 from her physician. Therein, the physician stated that Complainant be out of work until July 20, 2008. Complainant did not return to work July 21, 22 and 23, 2008. The record reflects that during the relevant period, Complainant did not contact the Agency regarding her work status.
After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 18, 2011, the AJ issued a Notice of Intent to Issue a Decision Without a Hearing and gave the parties fifteen days to file a response. After reviewing the record and the parties' response to the Notice, the AJ issued a decision without a hearing on May 23, 2011, finding no discrimination.
Without addressing the prima facie case analysis, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. Specifically, the AJ noted that S1 decided to terminate Complainant from Agency employment because she was AWOL on July 21, 22, and 23, 2008, and had two prior incidents of being AWOL, first in February 2008, and later for three consecutive days in June 2008.
S1 stated that in February 2008 and again in June 2008, Complainant "failed to notify myself of any doctor's excuses. The excuses ran out. Then again, I understand that when [Complainant] was . . . notified during June [2008] ..... that her responsibility was to notify me, it's just - - she's had - - she had two chances before, and she - - she did not let me know - - or let CPAC know. CPAC called her on one of them. The other time she followed up the following day - - February and June." S1 stated that at that time, he and the Human Resources Officer "thought that there was a communication problem possibly in June, with the different doctor's notes and the Workers' Comp. and different things like that. That's why I decided not to push this issue in June, because there was the possibility that happened."
Further, S1 stated when Complainant did not report to work on July 21, 22, and 23, 2008, he charged her with AWOL because he had not heard anything from her. Specifically, S1 stated that Complainant "was told that it was her responsibility to contact me when she's not going to be there." S1 stated that subsequently he made a determination to terminate Complainant from Agency employment based on job abandonment.
The Human Resources Officer (HR Officer) stated that during the relevant time Complainant had a doctor's note "that put her out until July twentieth, then she was supposed to be back to work. [S1] didn't hear from her on the twenty-first, twenty-second, and twenty-third [2008], and then [S1's office] processed the personnel action for abandonment of position, and that's how we get involved is - - sending out the personnel action." The HR Officer stated that paragraph 2-16(d) of the Army Regulation 215-3 states "an employee who fails to report to duty and is carried in an absent without leave - - AWOL - - status for three consecutive scheduled days' work may be determined to have abandoned his or her position, regardless of any expressed intent to return to work at a subsequent date."
The Chief of NAF Support Services stated that during Complainant's pre-complaint session, [HR Officer] made a comment to Complainant that she "was to keep her supervisor informed of any type of charges in her Workmen's Comp. determination, also to call in her supervisor if she can't make it to work, call-in procedures - - that was explained to her as her responsibility." The Chief further stated that [HR Officer] comments were "said several times. One of the . . . times I recall is that [Complainant] said that she did not want to keep her supervisor informed. But [HR Officer] had said that that was her supervisor. She works directly for him; so therefore, she has to inform him."
ANALYSIS AND FINDINGS
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.
Complainant did not make any new contentions on appeal. We find that the AJ properly issued a decision without a hearing, finding no discrimination. We determine that Complainant has failed to identify any genuine issues of material fact that require resolution through a hearing in this matter. The evidence of record fully supports the AJ's determination that Complainant did not prove, by a preponderance of the evidence, that discrimination occurred.
Accordingly, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 14, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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