Maryann T. DeLuca, Complainant,v.Hector V. Barreto, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01A33120 (E.E.O.C. Mar. 24, 2000)

01A33120

03-24-2000

Maryann T. DeLuca, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.


Maryann T. DeLuca v. Small Business Administration

01A33120

March 24, 20004

.

Maryann T. DeLuca,

Complainant,

v.

Hector V. Barreto,

Administrator,

Small Business Administration,

Agency.

Appeal No. 01A33120

Agency No. 12-00-005

Hearing No. 160-A1-8051X

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. 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 Business Information

Specialist/Manager of the Business Information Center (BIC), at the

agency's One Stop Capital Shop at the Business Resource and Investment

Service Center (BRISC) located in New York, New York, filed a formal EEO

complaint on December 7, 1999, alleging that the agency discriminated

against her on the bases of race (Caucasian), sex (female), color (White),

and in reprisal for prior EEO activity, when she was terminated during

her probationary employment on July 23, 1999. Complainant also alleged

that she was subjected to a hostile work environment based on her race

and sex during her probation.

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 AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of race, color and sex discrimination. The AJ concluded that complainant

established a prima facie case of retaliation. However, the AJ further

found that the agency articulated legitimate, nondiscriminatory reasons

for its actions. Specifically, the AJ found that complainant was a

probationary employee who was not meeting the basic requirements of

the job. The AJ also found that complainant was terminated because

there were complaints from BRISC management about her ability to open

the BIC in a timely manner and about the manner in which complainant

worked with BRISC management. Finally, the AJ found that on several

occasions, complainant engaged in altercations with customers, thereby

violating customer service standards by failing to be cordial and polite

to customers. The AJ found that complainant's supervisor received several

complaints from customers about complainant's negative attitude toward

them. Regarding complainant's claim of a hostile work environment, the

AJ concluded that the incidents about which complainant complained were

not sufficiently severe or pervasive to alter complainant's conditions

of employment and did not rise to the level of hostile work environment.

On appeal, complainant contends, among other things, that she was

subjected to disparate treatment, even though she was replaced by

another White woman. Complainant argued that she was discharged based

on retaliation, because other employees who were almost always late,

were not terminated like her. Complainant also argued that she was late

maybe one or two times. In response, the agency restates the position

it took in its final order and requests that we affirm its final order.

STANDARD OF REVIEW

We begin by noting that we are reviewing the AJ's decision without

a hearing, and the final agency decision adopting them, under a de

novo standard of review. 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 for 29

C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (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 issue of whether intentional

discrimination occurred, and on the legal issue of whether any federal

discrimination employment statute was violated. See id. at 9-15.

ANALYSIS AND FINDINGS

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

only appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exist

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, the issuance of

a decision without a hearing is not appropriate. Similarly, an AJ may

not issue a decision without a hearing if he or she actually has to find

facts first to do so.

After a careful review of the record, the Commission finds that

the issuance of a decision without a hearing was appropriate, as

no genuine dispute of material fact exists. Specifically, we note

that the agency established legitimate non-discriminatory reasons for

complainant's termination. The record establishes that complainant was

terminated because she had problems with customers, was rude to them,

and did not get along with the leadership of the BRISC. The record

also reveals that complainant had attendance problems. We further

note that complainant did not dispute any of the agency's reasons for

her termination. While complainant argued that other employees had

attendance problems and were not discharged, she failed to establish

that these employees were similarly situated to her. We conclude that

complainant has not �set forth specific facts showing that there is a

genuine issue for trial.� Fed. R. Civ. P. 56 (e).

Finally, under the standards set forth in Harris v. Forklift Systems,

Inc., complainant's claim of harassment must fail. See Enforcement

Guidance on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994).

A prima facie case of harassment is precluded based on our finding that

complainant failed to establish that any of the actions taken by the

agency were motivated by discrimination based on her protected classes.

See Oakley v. United States Postal Service, EEOC Appeal No. 01982923

(September 21, 2000).

We find that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. Further,

construing the evidence to be most favorable to complainant, we note

that complainant failed to present evidence that any of the agency's

actions were motivated by discriminatory animus towards complainant's

protected classes. Therefore, for the foregoing reasons, 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

March 24, 20004

__________________

Date