0120092680
08-27-2009
Marvella D. Heard, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Marvella D. Heard,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120092680
Agency No. P-2006-0697
Hearing No. 530-2008-00396X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's April 15, 2009 final order concerning her equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Senior Officer Specialist at the agency's Federal Correctional Institute in Allenwood, Pennsylvania.
On May 30, 2006, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On December 4, 2006, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of race (African-America), sex (female), and in reprisal for prior EEO activity when:
1. on October 19, 2006, she was involuntarily reassigned.
The record reflects that on May 4, 2007, complainant initiated EEO contact requesting that the instant formal complaint be amended to include the following claims that she was discriminated against on the bases of race, sex and in reprisal for prior EEO activity when:
2. on November 30, 2006, she was placed under investigation;
3. on February 20, 2007, she was subjected to a lengthy delay in entering the Special Housing Unit; and
4. from February 21, 2007 to March 7, 2007, she was subjected to unwarranted comments by co-workers and inmates. 1
The record further reflects that the agency granted complainant's request that the instant formal complaint be amended to include claims 2 - 4.
On September 25, 2007, the agency issued a partial dismissal. The agency accepted for investigation claim 1. However, the agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Regarding claims 3 and 4, the agency acknowledged that it had initially considered claims 3 and 4 like or related to a matter that has been brought to the attention of an EEO Counselor. However, the agency stated that after a careful review of the record, it made a determination that claims 3 and 4 are not accepted for EEO investigation and dismissed them on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Following the investigation concerning claim 1, complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 5, 2009, the AJ issued a decision by summary judgment in favor of the agency. On April 15, 2009, the agency fully implemented the AJ's decision in its final order.
The AJ found that complainant did not establish a prima facie case of race and sex discrimination. Specifically, the AJ found that complainant failed to identify any similarly situated individual not in complainant's protected classes who were treated more favorably than complainant under similar circumstances. Regarding the basis of reprisal, the AJ found that complainant did not establish a prima facie case because she did not establish a nexus between her prior protected activity and the October 2006 reassignment. The AJ further found that assuming, arguendo, complainant established a prima facie case of race, sex and reprisal discrimination, the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The Warden stated that he was the deciding official to reassign complainant from her Senior Officer Specialist position to the position of Inmate Systems Officer which involved less contact with the inmate population. Specifically, the Warden stated that the main reason he reassigned complainant was "for her own safety." The Warden acknowledged that complainant's reassignment was involuntarily because "I thought it was the best decision at the time, as I do now, and I didn't ask her if it was something that she wanted to do." The Warden stated "we had received not a few, but dozens, literally dozens, of complaints from inmates about [complainant's] perceived inability to communicate with inmates. We had had threats made on her life, threats made against her safety, most of these complaints were handled directly by the Captain at USP Canaan." The Warden stated that he, the Captain and the Associate Warden "would frequently discuss what we could do to improve [complainant's] inability to communicate with inmates. She was counseled numerous times." The Warden further stated that he did everything he could to leave complainant in her position "but in my opinion, the situation became untenable in that there were such a disproportionate number of complaints about [complainant] to the point where inmates were threatening her safety, I felt it was best to reassign her."
On appeal, complainant states "[regardless] of the decision of the administrative judge and the Agency I have been treated wrongfully and it should not be excused as acceptable behavior in a prison work environment." Complainant further states that her amended claims 3 - 4 were timely raised with an EEO Counselor.
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, 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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing regarding claim 1, or regarding the AJ's findings on the merits. Therefore, 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 unlawful discrimination occurred.
Claim 2
In its September 25, 2007 partial dismissal, the agency dismissed claim 2 failed to state a claim. The agency found that this matter constituted a collateral attack on the agency's internal affairs investigation. The record reflects that on January 13, 2009, the AJ issued a Decision on Partial Dismissal in which she determined that the agency properly dismissed claim 2 for failure to state a claim. The Commission determines that the agency properly dismissed claim 2 for failure to state a claim. The Commission has held that an employee cannot use the EEO process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for complainant to have raised her challenges to actions related to the internal affairs investigation is generally within that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack these actions. As such, we find that the agency properly dismissed claim 2 for failure to state a claim.
Claims 3 - 4
In its September 25, 2007 partial dismissal, the agency dismissed claims 3 - 4 on the grounds of untimely EEO Counselor contact. Specifically, the agency stated that on May 4, 2007, complainant initiated another EEO contact concerning her request to amend the instant complaint by including claims 3 - 4. The agency further concluded that the date of alleged discriminatory events were beyond the requisite 45-day limitation period.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The record discloses that the alleged discriminatory events occurred from February 20, 2007 to March 7, 2007. We concur with the agency and find that complainant did not raise these particular claims of discrimination until May 4, 2007, when she contacted the EEO office requesting that the instant complaint be amended to include the new claims, which is beyond the 45-day limitation period. Complainant has not identified any specific incidents that occurred 45 days or less prior to the May 4, 2007 contact. Furthermore, we find that complainant should have reasonably suspected discrimination more than 45 days prior to her initial EEO Counselor contact. Complainant has presented no persuasive arguments or evidence on appeal warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, we find that the agency properly dismissed claims 3 - 4 for untimely EEO Counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 27, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's amended claims as claims 2 - 4.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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