0120180744
09-14-2018
Kylee C.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kylee C.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180744
Hearing No. 531-2015-00355X
Agency No. ARAPG14JUN02309
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's October 10, 2017, final order concerning an equal employment opportunity (EEO) complaint alleging 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.
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Information Technology Specialist, 2210, GS-12, in Aberdeen Proving Ground, Maryland. On August 31, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (African-American), color (Black), sex (female), and reprisal for prior protected activity when:
1. On February 25, 2014, her second-line supervisor (S2) issued her a Letter of Counseling for working late;
2. On March 6, 2014, her first-line supervisor (S1) issued her a Letter of Counseling for working late;
3. On May 21, 2014, her third-line supervisor (S3) issued her a notice of decision to suspend for one day;
4. On June 19, 2014, S3 issued her a notice of proposed ten-day suspension;
5. On August 8, 2014, S1 asked her to complete tasks but did not allow adequate time to complete the tasks;2
6. On August 21, 2014, S1 and S2 questioned her about where she was following a training on August 5 and 8, 2014;
7. On September 3, 2014, the Chief of Staff issued her a notice of decision to suspend for 10 days;
8. On unspecified dates, she was asked to provide proof of work that she had completed;
9. On unspecified dates, she was not given the opportunity to compete for the Information Assurance Program Manager, 2210, GS-14, position;
10. On unspecified dates, S1 asked her to let him know when she was going to take extended leave after he had approved the leave;
11. On multiple dates from May 2014 to the present, she has received taskings from the Information Assurance Program Manager (C1), who is not her supervisor;
12. On multiple dates, she has received conflicting orders or directions from S1, S2, and C1; and
13. On multiple dates, she was treated as invisible and not spoken to and was only sent emails by S1, S2, and S3.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4) for being raised in a negotiated grievance procedure and dismissed claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its final order fully implementing the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
On appeal, Complainant contends that the AJ's decision must be reversed because it did not address these procedural dismissals. We note that the AJ's September 30, 2015, Acknowledgment and Order stated that the parties had 30 days to identify any dismissed claims and comment on the appropriateness of the dismissal and that Complainant's failure to oppose the dismissal of a claim in writing during the 30-day period would waive the opportunity to have the dismissal reviewed by the AJ. Therefore, the AJ did not commit reversible error. Moreover, we AFFIRM the dismissal of these claims by the Agency.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a summary judgment decision, and the decision itself, will both be reviewed de novo).
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the Agency properly dismissed three claims on procedural grounds and that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
Accordingly, we AFFIRM the Agency's final order fully implementing the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___9/14/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant contends on appeal that the AJ's decision failed to address this claim. We disagree. See AJ Decision (AJD) at 6, 12.
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