0120071781
10-09-2009
JoAnn Botte, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
JoAnn Botte,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120071781
Hearing No. 160-A1-8104X
Agency No. FSIS-2000-00133
DECISION
Complainant filed an appeal with this Commission from a January 25, 2007
agency decision, which purports to implement a July 31, 2002 decision
of an EEOC Administrative Judge (AJ) finding no discrimination.1
Complainant alleges 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Specifically, complainant alleges that the agency discriminated against
her on the bases of sex (female), age (49), and disability (hearing
impairment) regarding the employment options she was offered when the
agency's Boston District Office was abolished. Complainant alleges that
she was not offered either a permanent position or that of an Upward
Mobility Compliance Officer within the same commuting area and, also,
that she was told that she would have to resign from her permanent GS-7
position in order to be placed in a temporary GS-4 position within the
same commuting area.
After investigation, complainant requested a hearing. The agency
requested a decision without a hearing (summary judgment) and the AJ
issued a decision finding no discrimination.2
In the August 15, 2007 decision, the AJ concluded that complainant was not
disabled, noting that although the agency was aware that complainant had a
hearing impairment, complainant had not shown that her hearing impairment
substantially limited one or more major life activities. The AJ also
concluded that complainant failed to establish a prima facie case of sex,
age, or disability discrimination because complainant had not shown that
others similarly situated outside of her protected groups were treated
more favorably than she was. In making that determination, the AJ found
that all 10 of the Boston District Office staff employees were displaced
by the closing of the office and that of the 10 displaced employees,
seven were over 40 years old, and seven were males. The AJ noted
that none of the displaced employees were placed in an Upward Mobility
Compliance Officer position in Boston due to the office's closure.
The AJ concluded further that even if complainant had established a prima
facie case, the agency had articulated legitimate, nondiscriminatory
reasons for closing the Boston District Office, for offering her
a temporary position, and for not offering her an Upward Mobility
Compliance Officer position. The AJ also concluded that pretext
could not be inferred from the agency's actions and that she would
not second-guess the agency's personnel decision absent a demonstrably
discriminatory motive.
The record reveals that complainant occupied the position of a grade level
GS-7 secretary in the agency's Boston District Office. The record also
reveals that the Boston District Office which had 14 positions, four
of which were vacant, was closing for cost saving and other reasons.
The record reveals further that of the 10 employees, three employees
(including complainant) did not want to reconsider relocation. Of the
three who did not want to relocate, one of the three would soon be
eligible for retirement and was designated by the agency to close out
the office. For the two employees who did not wish to relocate, the
agency sought to find options for them in the local area.
The record contains a letter, dated May 17, 1999, from the Human Resources
Field Office Personnel Officer notifying complainant that she had three
options to consider and choose from, with regards to her placement.
First, complainant was offered a directed reassignment to a GS-7 position
as a secretary in Boulder, Colorado. As an alternative to accepting
the Boulder GS-7 position and relocating, she was informed that she
could accept a temporary, not-to-exceed-one-year GS-4 Office Automation
Clerk position which would permit her to remain in Boston for the year;
and that her acceptance of the temporary position would entitle her
to retain her GS-7 pay. Complainant's third option was to resign.
The record reveals that complainant informed the agency that she was
resigning from her permanent position in order to accept the temporary
GS-4 Office Automation Clerk position identified in the May 17, 1999
reassignment letter.
The record reflects that complainant accepted the GS-4 Office Automation
Clerk position. Complainant occupied the GS-4 position upon closure
of the Boston District Office until she obtained a GS-6 position in the
Boston area in August 1999.
The record indicates that the Upward Mobility Compliance Officer position
was not pursued as an option for anyone during the closure of the Boston
District Office. The record indicates further that before announcing the
Compliance Officer position, whether competitively or via upward mobility,
management would have had to consider the nationwide Compliance Officer
staffing ceiling and analyze staffing needs across the country before
announcing any Compliance Officer position in the Boston area. The record
indicates that even if staffing ceiling permitted filling a Compliance
Officer position, management would also have had to determine whether
current personnel was available to train those in the upward mobility
position. The record also indicates that upward mobility positions had
to be announced competitively and concurrently with regular competitive
announcements for Compliance Officer positions and applicants had to be
selected in accordance with merit system principles.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima
facie inquiry may be dispensed with where the agency has articulated
legitimate, nondiscriminatory reasons for its conduct. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail, complainant must prove, by a preponderance of
the evidence, that the agency's explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Because this is an appeal from a decision issued without a hearing, the
decision is subject to a de novo review by the Commission. 29 C.F.R. �
1614.405(a).
As an initial matter, the Commission notes that although complainant
appealed the agency decision which implemented the purported July 2002
decision of the AJ, the August 2007 decision has the same rationale,
analyses, and conclusions as the July 2002 decision and in all respects,
is the same except for lines of a paragraph moved to the subsequent page.
The Commission also notes that the certificate of service on the August
2007 decision reflects service was effected on both parties. Accordingly,
we proceed to examine this case using the August 2007 decision which
became the agency's decision by operation of law.
Upon review, the Commission finds that the grant of summary judgment
was proper. Assuming without deciding that complainant is disabled
and that she has established a prima facie case on each basis, we find
that the agency has articulated legitimate, nondiscriminatory reasons
for its actions and complainant has failed to show that the agency's
reasons were pretextual or motivated by discriminatory animus.
We find that complainant was placed in a temporary position because
the office was closing and personnel procedures dictated that if she
accepted the temporary GS-4 position, she had to resign from the GS-7
position. There is no evidence that management pursued the Upward
Mobility Compliance Officer position as an available option for any of
the displaced employees. Further, had such a position been created,
complainant would have had to apply for it competitively. Even accepting
as true complainant's statement that she was led to believe that she
would be placed in the Compliance Officer position and her statement,
the statement of that of the Supervisory Compliance Officer and that of
a Compliance Officer that the Assistant District Manager of Enforcement
had stated that complainant would not be able to perform as a Compliance
Officer because of her hearing, the preponderant evidence does not
establish that a Compliance Officer position was available or that it
was not created for discriminatory reasons. Construing all the evidence
in a light most favorable to complainant, complainant has failed to show
that the agency discriminated against her.
The finding of no discrimination 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
October 9, 2009
__________________
Date
1 There is no record of a signed July 31, 2002 decision of the AJ in
the record or any evidence that one exists. The only signed decision
in the record is the AJ's decision of August 15, 2007 finding no
discrimination.
2 The Commission notes that the record before the AJ had to be
reconstructed because the original file was destroyed in the September
11, 2001 terrorist attacks.
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0120071781
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071781