01a60868
04-07-2006
Kiersten Golsby, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Kiersten Golsby v. Department of Homeland Security
01A60868
April 7, 2006
.
Kiersten Golsby,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A60868
Agency No. I-02-H006
Hearing No. 100-2003-08261X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against her, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., on the bases of sex (female),
sexual orientation,<1> and in reprisal for prior EEO activity when:
(1) from October 2001 to January 2002, her request for office supplies
was denied; (2) in December 2001, she became aware that the agency
requested a credit check without her consent; (3) in December 2001, she
was not assigned any work to perform and her prior work assignments were
distributed to her co-workers; and (4) in December 2001, her paycheck
was garnished for reimbursement of money spent on government travel.
In his decision, the Administrative Judge (AJ) concluded that
complainant failed to raise a genuine issue of material fact that could
reasonably rebut the agency's articulated, non-discriminatory reasons
for its actions. Specifically, the undisputed record shows that: (1)
complainant was not denied any supplies that others had been provided;<2>
(2) the only credit check of record was conducted by the security office
pursuant to complainant's upgrade to a top security clearance;<3> (3)
complainant's workload was light because she was temporarily assigned
to a different unit and her workload was diminished when the private
bill process was streamlined during the period she worked in the unit;
and (4) complainant's wages were garnished because she owed the agency
reimbursement for travel funds related to a business trip that she failed
to complete.<4>
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
We agree with the AJ and conclude that no genuine issue of material fact
exists in the record. We do not find the alleged disputed facts raised
by complainant to be relevant to the issues herein.
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 order,
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 discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 7, 2006
__________________
Date
1 Complainant later withdrew this basis.
2 In addition, complainant failed to provide any specifics concerning
what supplies she was denied, when and by whom. In addition, there
is no showing by complainant that the responsible management official
(female) for the alleged denial of supplies was aware of complainant's
prior EEO activity or acted with gender animus.
3 The record is devoid of evidence connecting the credit check to any
responsible management official.
4 The undisputed record also shows that she failed to adequately explain
her reason(s) for aborting the trip, failed to submit her voucher in
a timely manner and in the proper format, and failed to pay delinquent
credit card expenses despite repeated warnings by the agency that her
wages would be garnished.