01a40204
07-07-2005
Martha A. Veal, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Martha A. Veal v. Department of the Navy
01A40204
July 7, 2005
.
Martha A. Veal,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40204
Agency No. DON-02-57023-075
Hearing No. 120-2003-00204X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Supervisory Computer Specialist at
the agency's Norfolk, Virginia facility, filed a formal EEO complaint on
June 10, 2002, alleging that the agency discriminated against and harassed
her on the bases of race/color (African-American), national origin
(African-American), sex (female), disability, age (born September 26,
1953) and in reprisal for prior EEO activity arising under Title VII when:
On June 14, 2002, complainant received a letter revoking her access to
classified information pending an administrative review;
On May 20, 2002, an email message was sent to the entire Command which
notified everyone that complainant's access to classified information
had been revoked and that she was required to have an escort at all
times whenever she was in the building;
On May 24, 2002, complainant and her representative went to the Command
to personally speak with an agency official to discuss the short deadline
for submission of medical documentation; however, after being asked to
wait for more than twenty minutes, management walked by them without
acknowledging their presence and refused to meet with them;
On May 15, 2002, complainant's supervisor issued her a Letter of Caution
accusing her of being in violation of a direct order for not following
proper leave requesting procedures and directed her to provide medical
documentation within an unreasonable deadline;
On May 1, 2002, after complainant submitted a request for data under
the Freedom of Information Act (FOIA), her supervisor became so angry
he slammed things around in the office in an attempt to intimidate her,
and this type of behavior increased whenever complainant was in her
supervisor's presence;
On April 24, 2002, complainant's supervisor threw a leave slip on her
desk and deliberately stood directly in front of her chair and desk,
blocking her from being able to get to her chair/desk to sit down.
After slipping past him to sit down, the supervisor said in a loud voice,
�excuse me� while moving two steps over, still partially blocking her
entrance to her desk;
On April 22, 2002, the supervisor set her up for failure when he issued
a new performance standards/tasking sheet which established unrealistic
work assignments and due dates, but failed to provide adequate training
and guidance needed to accomplish such complex assignments;
On April 8, 2002, complainant was issued a Letter of Requirement for
abuse of leave;
In February 2002, while planning and serving as Vice President of the
Black History Month Committee, the supervisor harassed her and told
her she could not participate or volunteer unless he approved it and
she had to make up all the time and effort spent that was directed to
the Black History Month Program and also threatened to start enforcing
the beginning and ending work hours and thirty minute lunch break and
asked her, �How would you feel?�;
In January 2002, after sustaining an injury to her ankle/knee, management
parked the government cars in the designated handicap spaces so she
could no longer park there after they discovered that it was her car
parked in the handicap spaces even though she had received permission
to do so and had received a handicap permit from the Department of
Motor Vehicles (DMV);
During the period October 29, 2001 through November 26, 2001, the
supervisor made complainant attend an �Instructor Training Class;�
After attending the Instructor Training Class, complainant returned to
find that her desk had been moved directly in front of her supervisor's
office and since that time, he constantly monitors her whereabouts,
telephone calls, stands behind and over her to listen to her telephone
conversations, and designates other employees to monitor her actions;
On numerous occasions, complainant has verbally or via email requested
training but has never received a reply except on one occasion she
received a response via email from her supervisor, but when she sent
it back asking for an explanation, he never responded;
Complainant's supervisor has started monitoring her mail, email, and
internet usage;
Management disapproved various requests for leave, including leave
under the Family and Medical Leave Act (FMLA) and leave donations,
and carried her in an Unauthorized Absence (UA) status;
On October 25, 2002, complainant received a letter approving
re-establishment of her access to classified material at the state
level; however, the letter ordered her to undergo an assessment by a
credentialed mental health professional employed by or acceptable to
the government;
On October 1, 2002, complainant received an email from her supervisor
with the subject line �African American Heritage Committee Meeting,�
which she found offensive;
Since her return to work, complainant has been subjected to a Security
investigation;
On October1,2002, complainant received a letter ordering her to return
to work or be issued a proposed removal for unavailability of duty; and
Management has failed to grant complainant's request to transfer to
another position or another facility.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency moved for a decision without
a hearing. The AJ granted the agency's motion and in a decision devoid
of legal analysis, found no discrimination or harassment. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends that material facts that were in dispute
for claims f, i, g, j, and k, making a decision without a hearing
inappropriate for those matters. The agency responds with the same
arguments it presented to the Administrative Judge in motioning for a
decision without a hearing.
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. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without 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).
In this matter, complainant contends that the issuance of a decision was
improper, particularly for claims f, i, g, j, and k because these matters
involve disputed facts. However, upon review of these matters, we find
that while the parties dispute various details of these claims, their
disputes are not material to whether the agency subjected complainant
to unlawful discrimination or harassment. For instance, for claim f,
the agency argues that there is no evidence that complainant's supervisor
stated �excuse you� in a loud voice to complainant as complainant alleged.
Even assuming that the supervisor uttered �excuse you� to complainant,
this statement would not support complainant's claim that she was
subjected to unlawful discrimination or harassment on any of the
protected bases. For claim g, the parties dispute the supervisor's
motive for issuing new performance standards and tasking sheets, but
this �dispute� is inherent in any contested discrimination or harassment
claim and does not involve a genuine dispute over material facts.
Moreover, after a thorough review of the record, we find the issuance
of a decision without a hearing for complainant's complaint was proper
because complainant failed to rebut the agency's explanations for what
happened with evidence from which a reasonable fact-finder could conclude
that the actions were taken against her because of her race/color, age,
disability, or prior EEO activity. Complainant's subjective belief does
not in and of itself place genuine issues of material fact into dispute.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
_July 7, 2005_________________
Date