0120082485
09-11-2009
Pamela McIlvaine, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Pamela McIlvaine,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120082485
Hearing No. 410-2007-00253X
Agency No. 2006-0080-R04
DECISION
On May 9, 2008, complainant filed an appeal from the agency's November
21, 2007 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 timely1 and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly found
that complainant had not been discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Environmental Engineer, GS-12, at the agency's Air, Pesticides and
Toxics Management Division facility in Atlanta, Georgia.
On August 18, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (white), sex (female),
age (41), and in reprisal for prior protected EEO activity arising under
Title VII when:
1. on April 14, 2006, she was treated inequitably and unfairly by being
placed on multiple leave restriction memos; and
2. she was threatened with a proposed suspension from duty for failure to
adhere to the leave restriction memo guidelines, which was made effective
on September 19, 2006 in the form of a three-day suspension.
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 the complainant's objections, the AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on November 5, 2007.
In his decision, the AJ found that in December 2002, complainant was
issued her first leave restriction memo. In April 2004, she was issued
another leave restriction memo by her supervisor (MO-1). At the time
of the April 2004 leave restriction memo, complainant had been absent
from work 25% of the time in 2003, and 50% of the time in 2004 to date.
She used combinations of annual leave, sick leave, leave without pay,
and use of the leave donation bank in order to be absent from work.
In October 2005, complainant was placed under a new supervisor (MO-2)
when the agency reorganized its operations and she was transferred to a
new section. MO-2 issued complainant a memo regarding her leave usage
in March 2006, which noted that she had been absent from work 35% of
the time and that her frequent absences were having a negative impact
on the work performed in the office. On April 14, 2006, complainant
was issued a noticed of proposed suspension for failure to follow leave
restriction procedures.
The AJ concluded that a decision without a hearing was appropriate.
The agency articulated legitimate, nondiscriminatory reasons for its
actions, in that complainant was using substantial amounts of leave,
and her compliance with the most recent leave restriction memo was
"spotty." He found that complainant had not presented evidence which
raised an inference of illegal, disparate treatment discrimination or
EEO retaliation, and that complainant had conceded that she lacked any
evidence of discrimination. The AJ was unpersuaded by complainant's
theories as to how the agency's actions were indicative of discriminatory
intent, and concluded that the complainant had not been discriminated
against.
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.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The agency did
not file any brief in support of its final order.
ANALYSIS AND FINDINGS
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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding 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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a thorough review of the record, we find that the AJ's issuance
of a decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute. We further find that the AJ's conclusion
that complainant has not shown that she was discriminated against based
on her race, sex, age or in reprisal for any previous EEO activity,2 and
the agency's implementation of that decision, was correct, and we AFFIRM
the agency's finding of no discrimination. The record indicates that
complainant, over a period of years, was counseled by her supervisors
about her frequent absences from work. Complainant has not pointed
to other employees, from outside of her protected categories, with
records of similar leave usage that were treated differently than she
was treated.
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
_____9/11/09_____________
Date
1 The agency did not present proof in the form of a copy of the certified
return receipt card showing that complainant had received the final order.
Complainant's appeal indicated that she had not received the final order.
Therefore, we deem the filing of her appeal to be timely.
2 We note that complainant did not claim that her usage of leave and
absences from work were in any way based on discrimination on the basis
of disability, as protected by Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.
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0120082485
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120082485