01a41818
06-24-2005
Laura E. McGrew, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Laura E. McGrew v. Department of Army
01A41818
June 24, 2005
.
Laura E. McGrew,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A41818
Agency No. ARFTEUS02JUN0006
Hearing No. 120-2003-00361X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated January 7, 2004, finding no discrimination with regard
to her complaint. In her complaint, dated August 2, 2002, complainant,
a Contract Specialist, GS-11, alleged discrimination based on reprisal
for prior EEO activity when: (1) on June 10, 2002, she was issued a formal
letter of reprimand; (2) she was subjected to continuous harassment from
her supervisor; and (3) in May 2002, she was passed over for promotion for
the position, GS-12, Contract Specialist and the supervisor did not tell
her why she was not selected. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing finding no discrimination.
The agency's final action implemented the AJ's decision.
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.
Upon review, the Commission finds that the AJ's issuance of a decision
without a hearing was proper in this case since there is no genuine issue
of material fact. The AJ determined that even if the evidence was viewed
in a light most favorable to complainant, she failed to show that the
agency was motivated by discriminatory animus based on reprisal for her
prior EEO activity.
With regard to claim (1), complainant's supervisor stated that on May
10, 2002, she called complainant and an employee/customer to discuss a
battery requirement that had been assigned to complainant. The supervisor
indicated that during the discussion, complainant became very �defensive
and argumentative� with that employee/customer which resulted in the
issuance of the alleged letter of reprimand.
With regard to claim (2), complainant claimed that she was continuously
harassed by the supervisor concerning the Ethernet switch project she
was working on with another employee, questioning clauses she put in
contracts, reviewing her work while not reviewing others, and not allowing
her to sign off her work in PD Square. The supervisor stated that she was
trying to get the Ethernet switch project finished since it was behind;
she reviewed complainant's work because of a mistake she had previously
made; and complainant was able to sign-off on some things in PD Square
but not everything and no one in the office was able to get sign-off
in PD Square for everything they did. The supervisor pointed out that
initially, her working relationship with complainant started out well,
but once she became complainant's supervisor their relationship changed
and complainant did not accept her criticism well and took everything
as a personal attack.
With regard to claim (3), the record indicates that complainant's
supervisor was a selecting official for the position at issue.
The supervisor stated that she reviewed the applications and chose six
applicants, including complainant, she thought best met the requirements
for the position. She indicated that she chose two other panel members
to interview these six applicants. They all asked the same questions
to those applicants. After interviewing the six applicants, the panel
members reached a consensus with regard to who should be selected.
Their top choice was one applicant (who received 63 points) but he turned
it down and the position went to the next highest ranked applicant (43
points); complainant (26 points) ranked fourth. The panel members all
indicated that complainant did not answer the interview questions as
well as the two top applicants.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ'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
June 24, 2005
__________________
Date