Sandra L. O'Heron, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionDec 9, 2009
0120092969 (E.E.O.C. Dec. 9, 2009)

0120092969

12-09-2009

Sandra L. O'Heron, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Sandra L. O'Heron,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 0120092969

Agency No. DFAS-00029-2008

Hearing No. 532-2008-00205X

DECISION

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

appeal from the agency's June 1, 2009 final order concerning an

equal employment opportunity (EEO) complaint claiming employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

On December 11, 2006, complainant was appointed to a GS-0525-04,

Account Maintenance Clerk position at the agency's Defense Finance

and Accounting Service (DFAS)-Columbus in Columbus, Ohio, subject to a

one-year probationary period.

On January 1, 2008, complainant filed the instant formal complaint.

Therein, complainant claimed that the agency discriminated against her

on the basis of disability (mobility and respiratory) when:

on November 26, 2007, she was removed from her position as a GS-0525-04,

Accounts Maintenance.

Following the investigation into her formal complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On May 28,

2009, 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, based on the evidence of record, complainant had not

established a prima facie case of discrimination based on disability.

The AJ further found that assuming complainant established a prima facie

case of disability discrimination, the agency articulated legitimate,

non-discriminatory reasons for its actions. The AJ noted that the record

reflects that complainant was removed from agency employment during her

probationary period because of her unacceptable performance.

The AJ further noted that according to complainant's supervisor (S1),

complainant was assigned to work on one end of the AF interfund system.

S1 stated that she had three employees "training [complainant] on the

interfund program. She, as everyone else, attended classes from a

trainer who came from Denver. She just could not grasp the work, so

I trained her on doing W-2 forms which is also done on the computer.

I also had [a named employee] train her on the W-2 forms. S1 stated

that when she and complainant discussed the difficulties complainant

was having, she informed complainant that "she was behind and was not

performing the full range of the duties of the position. She indicated

she understood that and that she would try harder. She never did begin

to learn the reconciliation of the W-2s. She basically just input

information for W-2s into the computer system." S1 further stated that

she made a determination to terminate complainant during her probationary

period "when I noticed that her performance had not improved, even after

talking with [complainant] about needing to perform more of the duties

of her position."

The AJ noted that S1 stated that complainant's disability was not a

factor in her determination to terminate her during her probationary

period. S1 stated that during the relevant time, she was not aware

that complainant "considered herself to be a disabled individual.

She used a walker for a short time before she was terminated but that

was the result of a fall, but that fall was not at work." 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.

On appeal, complainant argues that the AJ improperly granted summary

judgment in favor of the agency because there are genuine issues of

material fact. Complainant further argues that "written documentation

makes it clear that I was not terminated for my poor performance.

Instead, I was terminated due to the work that I missed as a result of

my respiratory and mobility disability."

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

December 9, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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