01A04010_r
08-26-2002
Ramona Estes, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ramona Estes v. Department of the Army
01A04010
August 26, 2002
.
Ramona Estes,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04010
Agency Nos. BHFR9701H0020; BHFR9701H0070;
BHFR9706H1060; BHFR9707H1320; BHFR09611G1880
Hearing No. 360-98-8611X
DECISION
Complainant timely initiated an appeal from the agency's April 14, 2000
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, and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
Complainant filed five formal EEO complaints between December 9, 1996
and July 30, 1997, claiming that the agency discriminated against her
on the bases of race, national origin, sex, age, and in reprisal for
prior EEO activity when:
from November 5, 1996 - November 7, 1996, she was suspended;
she was denied pay for four days of suspension instead of the three
days she served;
on November 8, 1996, she received a Counseling Memorandum for working
on a previously scheduled leave day;
on November 26, 1996, she received a rating of �Fair� on her performance
appraisal;
a co-worker made a negative comments about her and, as a result, on
December 10, 1996, she received a Counseling Memorandum;
on April 15, 1997, she was counseled for failure to work on assigned
duties;
on April 23, 1997, courses dealing with Personnel Security were deleted
from her Individual Development Plan;
on May 8, 1997, she received a rating of �Fair� on a Special Performance
Rating; and
on June 30, 1997, she was detailed from her position as Security
Specialist.
The record reveals that during the relevant time, complainant was
employed as a Security Specialist at the US Army Medical Department Center
and School. Believing that the agency was discriminating against her,
complainant sought EEO counseling and subsequently filed five complaints
claiming that the agency discriminated against him as referenced above.
The agency consolidated the five complaints, and at the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge.
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination on the bases alleged. The AJ further concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions. In addressing each of complainant's issues, the AJ pointed to
the overwhelming evidence provided by her supervisor showing that his
disciplinary and corrective actions were not discriminatory in nature
and that they stemmed from business concerns or were simply beyond
his control.
For instance, the AJ determined that complainant's �Fair� performance
appraisal ratings (claims 4 and 8) were fully supported in the record.
The AJ noted that the well-documented Counseling Memorandums of
complainant's supervisor reflected his attempts to correct complainant's
behavior. The AJ noted that other employees determined that complainant
had substandard performance. The AJ also found that the supervisor's
proffered evidence and testimony adequately explained the reasons for
complainant's three counseling sessions and three-day suspension (claims
1, 3, 5 and 6). The supervisor's disciplinary actions, according to the
AJ, were reasonable considering the adverse effect that complainant's
dereliction of duties had on the agency's mission. Moreover, the AJ found
that complainant's propensity to mislead her supervisor, when questioned
about her work, compounded the negative effects of complainant's inability
to perform her job.
The AJ also determined that some of the supervisor's actions were
reasonably prudent and justified by business concerns. Specifically,
the AJ found that the supervisor's decision to delete personnel security
courses and other training from complainant's Individual Development Plan
(claim 7) stemmed from a belief that complainant's record of security
breaches may compromise the agency. In addition, the AJ was persuaded
by the argument that the agency had no obligation to expend resources
to send marginally performing employees to advanced training.
Finally, the AJ noted that complainant's supervisor had no control over
some events alleged by complainant. The AJ determined that the supervisor
was not in the position to influence the keying error that resulted
in complainant being incorrectly paid during her suspension (claim 2),
or the determination, based on an outside contractor's recommendation,
to consolidate installation facilities (claim 9). Indeed, this decision
led not only to the abolishment of complainant's position but that of
her supervisor.
While conducting her analysis of the agency's reasons for their actions,
the AJ found that complainant did not establish that, more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found,
in every case, that complainant failed to provide evidence proving
discriminatory animus.
On April 14, 2000, the agency issued a final order implementing the
AJ's decision. Complainant raises no new contentions on appeal.
The agency requests that we affirm its final order.
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 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, 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.
After a careful review of the record, the Commission finds that granting
of summary judgment was appropriate, as no genuine dispute of material
fact exist. We find that complainant failed to prove that she has been
subjected to unlawful discrimination by the agency. Even after viewing
the evidence in a light most favorable to complainant, we agree with
the AJ's finding that the agency presented legitimate, nondiscriminatory
reasons for its conduct and that complainant failed to meet her burden
to show, by the preponderance of evidence, that the agency's reasons
for its actions were pretextual or motivated by discriminatory animus
toward complainant's protected classes.
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the AJ's decision. Therefore, after careful review of
the record, including arguments and evidence not specifically addressed
in this decision, 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
August 26, 2002
__________________
Date