0120080301
09-16-2009
Gwendolyn E. Evans, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gwendolyn E. Evans,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080301
Hearing No. 570-2007-00051X
Agency No. 200L-2004-2002103700
DECISION
Complainant filed an appeal from the agency's final action dated September
17, 2007, finding no discrimination with regard to her complaint.
In her complaint, complainant, an EEO Counselor with the agency's Office
of Resolution Management (ORM) in Fayetteville, North Carolina, alleged
discrimination based on race (Black), sex (female), and in reprisal for
prior EEO activity when she was subjected to harassment concerning:
(1) Performance Appraisal: On May 10, 2002, she received a negative
mid-term appraisal at which time her supervisor spoke to her in a
derogatory manner; on May 28, 2002, the supervisor required her casework
to be completed in a specific order and time frame; on August 12 and 28,
2002, another supervisor ordered her to change the format of the letters
she drafted to the Medical Center Directors; on November 6, 2002, her
performance appraisal was mailed to another employee; and, on September 6,
2002, she learned that she was not assigned to the ORM committees;
(2) Training: On June 12, 2002, she was not selected to attend an
ORM conference in Atlanta, Georgia, and on July 15, 2002, she was not
approved to attend the Federal Dispute Resolution (FDR) conference; and,
(3) Awards: On December 23, 2002, she received a bonus of $350.00 which
was less than the amount other employees received.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On August
28, 2007, the AJ issued a decision without holding a hearing, finding no
discrimination. 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. 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents.
With regard to claim (1), complainant's supervisor stated that complainant
was not meeting her assignment deadlines resulting in a backlog in
her cases. Complainant claimed that during the relevant time period,
her supervisor made derogatory remarks, i.e., "you let me talk,"
when she was trying to ask the supervisor questions about something.
The agency stated and we agree that this remark, in and itself, did not
constitute harassment. Complainant does not claim that the supervisor
made any similar remarks on any other occasion. The supervisor
stated that she delegated authority to review certain form letters
to another supervisor, identified by complainant, who corrected the
letters drafted by the supervisor's employees, including complainant,
because they failed to comply with the required format for the letter.
The supervisor indicated that all counselors had letters returned for
corrections when there were mistakes discovered.
The supervisor also stated that she gave her employees' appraisals to
her assistant who mistakenly placed them in one envelope and addressed it
to one of the employees to distribute to the other employees, including
complainant. With regard to the alleged assignment, the supervisor
indicated that her superiors were seeking to put teams together on
specific projects and that she did not submit complainant's name, and
many other people's names, for such workgroups. Furthermore, the agency
stated complainant was behind on her work and was not recommended for
the ORM committee.
With regard to claim (2), the supervisor stated that for the Atlanta
conference, first preference was given to senior executives and managers,
like her. When there was further availability, indicated the supervisor,
she did further selection among the other staff based on a lottery.
For the FDR conference, the supervisor stated that because of the
nature of the program she generally sent intake staff, not counselors,
like complainant. The supervisor noted that she recently scheduled
complainant for the FDR conference in August 2003.
With regard to claim (3), the supervisor indicated that she allocated
bonus awards based on what she believed an employee had done beyond their
normal duties and how it had contributed to the mission of the office.
The supervisor stated that she had given different people different
amounts but that a number of employees received the same $350.00 amount
as complainant.
Based on the foregoing, we agree with the AJ that complainant failed to
rebut the agency's legitimate, nondiscriminatory reasons for the alleged
incidents. After a review of the record, we find that complainant
failed to show that the alleged harassment was sufficiently severe or
pervasive to affect a term and condition of her employment or that any
agency actions were motivated by discrimination or that it was related
to any protected basis of discrimination.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
9/16/09
__________________
Date
2
0120080301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013