0120091047
05-28-2009
Rosa Le, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Rosa Le,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091047
Agency No. DAL-07-0009-SSA
Hearing No. 460-2008-00024X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 26, 2008 final order concerning her equal employment opportunity (EEO) complaint 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 bases of race (Asian/Pacific Islander) and national origin (Vietnamese) when:
on September 21, 2006, she was not selected for the Title 2 Post Entitlement Claims Representative detail in the Houston Northwest District Office.
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On October 14, 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 had not established a prima facie case of discrimination based on race and national origin. The AJ further found that assuming complainant established a prima facie case of race and national origin discrimination, the agency articulated legitimate, non-discriminatory reasons for its actions. The AJ noted that in his September 2006 announcement, the Operations Officer (OO) stated that all Service Representatives at the Houston Northwest office would be posted to a 120-day detail to a Claims Representative position. The AJ further noted that during the relevant time, there were nine Service Representatives, including complainant. The AJ noted that pursuant to Article 26 of the agreement between the union and the agency, management was not required to post any solicitation of interest for the position. The AJ also noted that there were no applications submitted or interviews conducted for the subject detail.
The AJ noted that the selecting official (SO) met with complainant's first-level supervisor and second-level supervisor and discussed the qualifications of all the Service Representatives to determine who would serve the first 120-day detail. SO stated that she selected an identified Services Representative (SR1) for the first detail and another Services Representative (SR2) for the second detail. SO further stated that she selected complainant for the third detail. The AJ noted that there were six other qualified and eligible Service Representatives awaiting their 120-day detail when complainant was selected for the third detail. The AJ determined while complainant does not agree with being selected third, complainant does not dispute that she served a 120-day detail; and received the benefits and pay increase associated with the subject detail. The AJ concluded that complainant was arguing that being selected third was not her preference. 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.
Moreover, the AJ noted that complainant raised new claims of disparate treatment and harassment in her response to the agency's Agency Motion for Findings of Fact and Conclusion of Law Without a Hearing pursuant to 29 C.F.R. � 1614.109(g)(1). Specifically, complainant alleged that she was subjected to disparate treatment and harassment based on her race, national origin and religion when she was denied promotional opportunities and job advancement; and when she was not selected for the 2004 Claims Representative position. The AJ stated that a review of the record reflects that complainant did not make a request to have her formal complaint amended to include the additional bases and new claims. Consequently, the AJ determined that the additional bases and new claims raised in complainant's response are untimely and would not be considered in the instant case.
On appeal, complainant contends that the investigation record is not adequately developed. Complainant states that the EEO Counselors ignored her request to have the instant formal complaint amended to include new claims of disparate treatment and harassment. Specifically, complainant states that the EEO Counselors "ignored the request and simply included it as background, when it was requested to be part of the continuing harassment and hostile environment that the Complainant was subjected to...The Complainants representative at that time was inexperienced, and did not know anything could be done other than to state ones case to the Counselor."
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.
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the record is adequately developed, and that the claim at issue was properly defined.
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
May 28, 2009
__________________
Date
2
0120091047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091047