Sadie A. Avilucea, Complainant,v.Eric Holder, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionFeb 25, 2009
0120070605 (E.E.O.C. Feb. 25, 2009)

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offer with the White Sands Missile Range (WSMR) had been rescinded prior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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