Patricia K. Millet,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJun 30, 2009
0120091306 (E.E.O.C. Jun. 30, 2009)

0120091306

06-30-2009

Patricia K. Millet,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Patricia K. Millet,1

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120091306

Agency No. FS-2007-00969

Hearing No. 550-2008-00241X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 1, 2008 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.

Complainant alleged that the agency discriminated against her on the

basis of sex (female), national origin (unspecified) and in reprisal

for prior EEO activity when:

a. on June 13, 2007, she learned that a subordinate employee had brought a

gun to the workplace and on a separate occasion he made the threat "it's

time to bring in a shotgun and take care of the problem" regarding her,

and management failed to timely inform her of the incidents or adequately

address them;

b. management denied her requests for administrative leave after she

learned of the threat; and

c. on an unspecified date, she learned that her son's appointment to the

Forest Service Student Career Experience Program (SCEP) program had been

rescinded with no explanation.

Following the investigation into her formal complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On August

5, 2008, the AJ issued a decision by summary judgment in favor of the

agency. The agency fully implemented the AJ's decision in its final

order.

The AJ found that complainant did not show by a preponderance of the

evidence that she was discriminated against on the bases of sex, national

origin and retaliation. The AJ further found that complainant did not

prove she was subjected to harassment sufficiently severe or pervasive

so as to render her work environment hostile.

The AJ noted that in regard to claim a, the record indicates that

complainant did not learn of the subordinate employee (SE)'s comments

until the afternoon of June 14, 2007. The AJ further noted that during

the relevant time, SE never made any threats to complainant at any

time, and complainant never saw or talked to SE again after she learned

about what he had said to a Resource Assistant (RA) on June 13, 2007.

The AJ noted that according to complainant's supervisor (S1), on June 14,

2007, the District Fire Management Officer and a Law Enforcement Officer

informed her that RA had reported to them the previous evening, that SE

"had essentially been very angry and agitated late in the afternoon of

June 13th because he did not get a detail and blamed the complainant

and me for that fact. [SE] had made a comment that he would bring a

gun to work and solve all of his problems." S1 stated that as soon as

she learned of the threat, she immediately called complainant at home.

Specifically, S1 stated that complainant "was not at work yet and I told

her not to come in until [SE] was removed from the premises. It was

already decided upon that [SE] would be removed from the premises.

I did not want complainant here because their offices are right next

to each other."2 The record reflects that complainant was given four

hours of paid administrative leave to compensate for this absence.

With respect to complainant's allegation that management failed to timely

inform her of the incidents or adequately address them, S1 stated that

complainant learned of the threat on June 14, 2007 not June 13, 2007.

S1 also stated that it was her understanding that on June 14, 2007,

complainant learned from another subordinate that a named employee had

told her that SE "had a gun in his vehicle on the compound a few months

earlier." S1 stated that complainant's allegation sounds like SE's gun

"may have been brought to work at the time of the threat, June 13th, when

in fact it occurred months earlier." S1 stated that complainant "told

me that she felt that the gun should have been reported to management at

the time it was first seen, since firearms are not allowed on government

compounds except for authorized activities."

Regarding claim b, the AJ noted that a review of the record reflects that

management denied complainant's request for administrative leave because

her situation did not justify such leave beyond the four hours she had

been granted on the morning of June 14, 2007. The AJ noted that according

to the Deputy Forest Supervisor (D1), management denied complainant's

requests for administrative leave after she learned of the threat by

SE "because we did not have the authority to do so." Specifically, D1

stated that because SE "had been barred from the office and because she

had a restraining order against him we felt we had done what we could."

Regarding claim c, the AJ noted that since complainant's son's appointment

to a SCEP position was unauthorized and unfunded, the agency was required

to rescind the subject appointment. Specifically, the AJ noted that

D1 stated that the subject appointment was rescinded "because there

were three procedural errors." D1 stated that the District Ranger (DR)

approved the SF-52, Request for Personnel Action, to place complainant's

son to a SCEP position. D1 further stated that DR "does not have the

authority to do that. It is the Forest Supervisor's authority. Another

issue was that the position was not on an approved Workforce Organization

Chart signed by the Forest Supervisor and the position was not covered

in an Approved Work Plan which is our budgeting tool for the year."

D1 stated that she questioned the subject appointment when a named

employee came to her with the tuition approved for complainant's son.

Specifically, D1 stated "I questioned it immediately because I did not

remember [Complainant's son] name coming up on a list when the Plumas

Leadership Team had previously discussed our SCEPS for the year...I did

not remember [Complainant's son] position being on an approved Project

Work Plan. I also did not remember signing a SF-52. There were red

flags immediately."

With respect to complainant's allegation that her son's appointment was

rescinded with no explanation, D1 stated that DR personally met with

complainant's son concerning the reasons why his appointment was being

rescinded. D1 stated that she also corresponded with complainant's son

by e-mail "because we did not have a telephone number for him. In that

e-mail I explained the three procedural errors." Furthermore, D1 stated

that she [named Forest Supervisor], and DR met with complainant's son and

"explained all these things to him at a later date in person." Finally,

the AJ concluded that complainant did not prove, by a preponderance of

the evidence, that the agency's proffered reasons for its action were

a pretext for discrimination.

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, 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.

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

June 30, 2009

__________________

Date

1 The record reflects that during the investigation into her formal

complaint, complainant applied for disability retirement and has since

retired from agency employment.

2 The record reflects that SE was immediately placed on leave and was

subsequently terminated from agency employment effective November 10,

2007.

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0120091306

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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