0120063585
02-23-2007
Mary A. M. Foeller, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Mary A. M. Foeller,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200635851
Hearing No. 320-A5-0253X
Agency No. 6X1S04038
DECISION
On May 30, 2006, complainant filed an appeal from the agency's April
25, 2006, final order concerning her 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Management and Program Analyst, General Schedule (GS)-0343-09,
Detachment 7, Civil Air Patrol, Rocky Mountain Liaison Region, Peterson
Air Force Base, Colorado. Believing she was a victim of discrimination,
complainant sought EEO counseling, and filed an EEO complaint on July
28, 2004, which she amended on October 19, 2004, alleging that she was
discriminated against and subjected to unlawful harassment, on the bases
of sex (female), religion (Christian), and age (D.O.B. 12/27/53) when:
1. On August 8, 2003, she received negative performance feedback;
2. On September 2, 2003, she was no longer allowed to participate in
the Civilian Health and Fitness Program [CHFP];
3. On September 24, 2003, her projected leave was disapproved;
4. On September 25, 2003, she received an Oral Admonishment;
5. On November 6, 2003, she received an Oral Admonishment;
6. On November 28, 2003, she was required to participate in Staff
Assistance Visits [SAVs];
7. On March 23, 2004, her supervisor [S1] stated that he believed she
was abusing her sick leave;
8. On May 5, 2004, she received negative performance feedback;
9. On May 17, 2004, she received a notice of leave requirement letter
and a sick leave abuse letter;
10. On June 3, 2004, she received a medical accommodation letter;
11. On July 15, 2004, she was denied the opportunity to participate in
the National Security Personnel System [NSPS] focus group;
12. On July 22, 2004, she received a notice of reprimand;
13. On August 11, 2004, she was directed to engage in "Additional Duty
and Training" which could have an adverse effect on her close-out duties
as the Resource Advisor;
14. On August 23, 2004, she received a proposed notice of a five-day
suspension;
15. On October 1, 2004, she received negative performance feedback.
16. On October 18, 2004, she received a notice of three day suspension.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's December 21, 2005 motion for a decision
without a hearing and issued a decision without a hearing on March
15, 2006.
The AJ incorporated into his decision the "undisputed facts" as set forth
in the agency's Motion for a Decision Without a Hearing, and adopted
them as his findings of fact. The AJ then found that complainant failed
to establish a prima facie case of discrimination on the alleged bases,
noting that she did not show that similarly-situated individuals, not
in her protected classes, were treated more favorably under similar
circumstances. The AJ found that complainant did however establish
a prima facie case of reprisal discrimination. The AJ further found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions (which he explained in detail), and that complainant has
not presented evidence of pretext. Under a harassment analysis, the
AJ found that complainant failed to offer evidence that the alleged
harassing incidents were based on her membership in a protected group.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
On appeal, complainant notes that she was the only civilian employee
working in her office at the relevant time, as the other employees
were all military members. She states that she should have hired an
attorney to represent her through the EEO process. She also asserts
that a former employee of S1 who is female, Christian, and over age
40, experienced similar treatment, and that the EEO investigator never
obtained testimony from the former employee because the investigator used
the wrong e-mail address. The agency asserts that the record contains no
genuine issue of material fact in dispute, and asks that the Commission
affirm the final order.
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 EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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. The Commission finds that a decision
without a hearing was warranted in the instant case.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Disparate Treatment
Assuming arguendo that complainant established a prima facie case
concerning the issues in her complaint, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Here, it is
clear that complainant and S1 viewed complainant's position description
quite differently, and that complainant feels that S1 assessed her work
incorrectly. Complainant also clearly feels that she was over-extended
in terms of the work that she was required to perform. Even considering
the record evidence in the light most favorable to complainant, we do not
discern any persuasive evidence that the motivation for S1's treatment of
her was discriminatory or retaliatory animus. As to complainant's claim
that the testimony of a female, Christian former employee of S1 (over age
40) was pertinent to her case, and is missing from the investigation,
we note that even assuming the former employee had testified that she
was treated similarly to complainant, this, without more, would still
not raise a genuine issue of material fact in this case. Complainant
has not asserted that the former employee would be able to provide any
specific, persuasive evidence that S1's actions concerning complainant
were motivated by sex, age, religion or prior EEO activity.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2)
the harassment was based on her membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). The evidence in
the record is insufficient to support a finding that management's actions
towards complainant were based on her membership in a protected group.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, 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
February 23, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 In addition to the above-cited bases of discrimination, complainant
also alleged reprisal for prior EEO activity arising under Title VII
and the ADEA, as to the challenged actions that occurred after she filed
her July 28, 2004 formal complaint.
??
??
??
??
2
0120063585
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036