0120111849
06-10-2011
Karen N. Guice, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Karen N. Guice,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120111849
Hearing No. 560-2010-00130X
Agency No. 09-63-00555D
DECISION
Complainant filed an appeal from the Agency’s final order dated January
19, 2011, finding no discrimination with regard to her complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In her complaint, dated June 10, 2009, Complainant alleged discrimination
based on race (African American) and color (Brown) when on February
27, 2009, she was terminated or furloughed as a Census Clerk for
lack of work. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On December 30, 2010, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the
AJ’s decision.
On appeal, Complainant contends that the AJ improperly denied her request
to amend her complaint to include a claim that in October 2009, she was
not called into as a “Lister” as frequently as others in the office.
Complainant’s Appeal Brief.
ANALYSIS AND FINDINGS
Initially, we note that despite Complainant’s contentions, the
AJ properly denied her request to amend her complaint to include the
alleged October 2009 incident. Specifically, the AJ stated that she
denied the request because a different managerial office and witnesses
and a different work assignment as a “Lister,” and not as a “Census
Clerk,” were involved in the October 2009 incident. AJ’s Decision,
at 4. The AJ also indicated that because of the long delay of eight
months, the involvement of new and different management officials, and
the different in job assignment, Complainant’s request to amend the
instant complaint was denied. Id.
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 termination. Management
indicated that Complainant was hired in December 2008, for a period of two
months to assist with the workload in preparation for the Agency’s 2010
Decennial Census. In January 2009, she was transferred to a temporary
Clerk position at issue which was not to go beyond or exceed April 8,
2009. Management stated that Complainant was allegedly terminated due
to insufficient work in accordance with Agency policy. The AJ noted
that during the relevant time period, management terminated a number
of Complainant’s coworkers due to insufficient work as well. The AJ
noted that subsequently, in April 2009, Complainant was reinstated into
a temporary position with a term appointment not to go beyond or exceed
June 13, 2009.
Upon review, we agree with the AJ that Complainant failed to rebut
the Agency’s legitimate, nondiscriminatory reasons for the alleged
termination. Based on the foregoing, we find that Complainant has failed
to show that the Agency’s action was motivated by discrimination as
she alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
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
6/10/11
__________________
Date
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0120111849
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111849