01a01999
09-27-2000
Ismaelita V. Wallace, Complainant, v. I. Michael Heyman, Secretary, Smithsonian Institution, Agency.
Ismaelita V. Wallace v. Smithsonian Institution
01A01999
September 27, 2000
Ismaelita V. Wallace, )
Complainant, )
)
v. ) Appeal No. 01A01999
) Agency No. 9727040197
I. Michael Heyman, ) Hearing No. 100-98-8030X
Secretary, )
Smithsonian Institution, )
Agency. )
______________________________)
DECISION
Ismaelita Wallace (complainant) timely initiated an appeal to the Equal
Employment Opportunity Commission (EEOC) from the final decision of the
agency concerning complainant's claim that the agency violated Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The Commission hereby accepts the appeals in accordance with 29 C.F.R. �
1614.405.<1>
The issues on appeal are whether complainant was discriminated against on
the bases of race (Asian), sex (female), and national origin (Filipino)
when: (1) from October 25, 1996 through December 20, 1996, she was placed
on administrative leave by management officials during an investigation
of allegations that she (complainant) sexually harassed an employee; (2)
she was subjected to an ongoing pattern and practice of harassment when
she was coerced into promoting her subordinate to grade level 8; and,
(3) as a result of an ongoing pattern and practice of discriminatory
harassment, she was compelled by her supervisor to discipline her
subordinate with a letter of reprimand for insubordination.
During all relevant time periods, complainant held the position of
Inventory Accounting Manager, IS-9. She filed a formal EEO complaint
raising the issues stated above. The complaint was investigated; and,
complainant requested a hearing before an EEOC administrative judge (AJ).
Thereafter the agency filed with the AJ a Motion for Summary Judgment
(the Motion). After receiving legal briefs from both parties, the AJ
determined that summary judgment was appropriate because there were
no genuine issues of material fact in dispute. On November 24, 1999,
the agency issued its final agency decision (FAD), which affirmed the
AJ's recommended decision (RD). Complainant now appeals the FAD.
In his RD, the AJ found that the agency's briefs correctly stated the
material facts and applicable standards and that summary judgment was
appropriate for the reasons stated in the agency briefs. The AJ concluded
that complainant presented no probative evidence that her race, national
origin, and sex were factors in the claimed adverse acts at issue and
that complainant could not create genuine issues of material fact by
simply asserting bald claims of illegal discrimination.
Regarding claim (1), the AJ accepted the agency's determination that
complainant failed to contact an EEO Counselor in a timely manner.
Complainant contacted a Counselor on February 4, 1997, more than
forty-five (45) days after the claimed incident. The AJ rejected
complainant's argument that the administrative leave constituted part
of a �continuing violation� and should be accepted on that basis. In
addition, the AJ also agreed that, even if the issue had been timely
raised, complainant failed to prove discrimination. The situations of
the comparative male employees (E-1 and E-2) cited by complainant were
different from complainant's situation and thus, E-1 and E-2 were not
similarly situated to complainant.
Concerning claims (2) and (3), the AJ found that neither of the
claimed incidents involving the subordinate established any form of
discrimination. According to the agency's conclusions, which the AJ
accepted, there were no adverse actions taken against complainant and,
in any case, complainant neither alleged nor offered any evidence that
other employee(s), not of her protected class, were treated differently.
The AJ also accepted the agency's contention that complainant failed to
establish a case of discriminatory harassment.
Because complainant's case was decided without a hearing, we review the
decision de novo. Initially, the Commission finds that the AJ properly
determined that summary judgment was appropriate. Based on the evidence
contained in the record, there exists no dispute between the parties
regarding the material facts on which complainant's claim is predicated.
After a careful review of the record, including complainant's and the
agency's statements on appeal, the Commission finds that the AJ's Findings
of Fact and Conclusions of Law are correct. It appears that claim (1)
was not timely raised with an EEO Counselor. However, assuming that it
was, we find that complainant failed to present evidence to show that
she was placed on administrative leave for any reason other than that
stated by the agency. Concerning the remaining claims, there is simply
no evidence in the record that the claimed actions occurred because of
complainant's race, sex, or national origin; in fact, it is doubtful
that they actually constituted adverse actions against complainant.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
09-27-00
DATE Carlton M. Hadden, Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.