0120070605
02-25-2009
Sadie A. Avilucea, Complainant, v. Eric Holder, Attorney General, Department of Justice, Agency.
Sadie A. Avilucea,
Complainant,
v.
Eric Holder,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120070605
Hearing No. 320200500166X
Agency No. F20045815
DECISION
On November 15, 2006, complainant filed an appeal from the agency's
October 11, 2006 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 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(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant was a
former Office Management Assistant, GS-7, at the agency's Las Cruces, New
Mexico facility. On October 17, 2003, complainant filed an EEO complaint
alleging that she was discriminated against on the bases her disability
(carpal tunnel syndrome, reflex sympathetic dystrophy), age (49 at the
relevant time), and in reprisal for prior protected EEO activity when:
1. on October 12, 2000, management refused complainant's request
to have an occupational therapist evaluate her work station;
2. in April 2003, and on May 1, 2003, management officials informed
her prospective employer that she was on leave-without-pay (LWOP) status
due to a pending Office of Workers' Compensation Program (OWCP) claim,
and disclosed the medical condition that caused her to be placed in LWOP
status;
3. management officials failed to inform complainant that her job
offer with the White Sands Missile Range (WSMR) had been rescinded prior
to her resignation from the agency on May 2, 2003; and
4. management refused to reinstate complainant on August 18, 2003. 1
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. On May 4, 2006, the AJ assigned to the case notified
the parties of his intent to issue a decision without a hearing, and on
June 13, 2006, the AJ dismissed claims (1)-(3) for untimely EEO Counselor
contact. On August 16, 2006, the AJ issued a decision with respect to
the remaining claim, finding that, after viewing the evidence in the
light most favorable to complainant, a decision without a hearing was
appropriate as there were no genuine issues of material fact in dispute.
The AJ concluded that assuming, arguendo, complainant established a prima
facie case of age, disability, and reprisal discrimination, the agency
nonetheless articulated legitimate, nondiscriminatory reasons for its
actions that complainant failed to show were pretextual. The agency's
final order adopted the AJ's finding of no discrimination. On appeal,
complainant reiterates her contention that the AJ erred in dismissing
claims (1)-(3) for untimely EEO Counselor contact. Complainant also
contends that the AJ erred in issuing a decision without a hearing as
there are material facts in dispute.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Here, upon review of the counselor's report, we find that complainant's
initial contact with an EEO Counselor occurred on June 20, 2003, and
that her initial interview took place on June 24, 2003. (Report of
Investigation, Exhibits 1 and 2). We further find that although
complainant contends that she raised claims (1)-(3) with an EEO Counselor
on May 5, 2003, the record evidence does not support this allegation.
Accordingly, we affirm the dismissal of claims (1)-(3) of the instant
complaint.
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, it is not appropriate
for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. Petty v. Defense Security Service,
EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. To prevail in a disparate treatment claim such
as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley
v. Department of Veterans Affairs, EEOC Request No. 05950842 (November
13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
Here, we concur with the AJ's finding that assuming, arguendo, complainant
established a prima facie case of age and disability discrimination,
the agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the record reflects that on May 2, 2003,
complainant completed an exit interview and submitted her resignation
to the agency. (R.O.I., Exhs. 18 and 19). The record further reflects
that complainant resigned her position with the agency after accepting
a tentative offer of employment with the WSMR, but that the offer was
rescinded on May 1, 2003, without complainant's knowledge. (ROI, Exhs. 9,
10, 11). Complainant did not learn that her job offer from the WSMR had
been withdrawn until after submitting her resignation on May 2, 2003. Id.
Although complainant immediately contacted the agency to request that
her resignation be cancelled, the agency denied her request. (ROI,
Exh. 10). Complainant then proceeded to contact various agency
officials in an attempt to negotiate reinstatement. (ROI, Exhs. 12,
15, 16). The agency informed complainant, by letter dated August 18,
2003, that her reinstatement request was denied because her position
had been abolished in line with an agency mandated staff reduction. Id.
We find that, although complainant argues at length that the agency's
denial of her request for reinstatement was motivated by discriminatory
animus, she has proffered no evidence beyond her bare assertions to
support her claims. Accordingly, we find that, viewing the record
evidence in the light most favorable to complainant, there are no genuine
issues of material fact. We further find that the AJ appropriately issued
a decision without a hearing, finding no discrimination. Therefore,
we discern no basis to disturb the AJ's decision and the agency's final
order is AFFIRMED.
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
February 25, 2009
Date
1 In her formal complaint, complainant also alleged that the agency
discriminated against her on the basis of her sex; however, she later
abandoned sex as a basis.
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0120070605
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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