0120091492
06-24-2010
Shirley Gembeh, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Patent and Trademark Office), Agency.
Shirley Gembeh,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Patent and Trademark Office),
Agency.
Appeal No. 0120091492
Hearing No. 570-2008-00293X
Agency No. 07-56-88
DECISION
Complainant filed an appeal from the Agency's final action dated January
14, 2009, concerning her complaint alleging employment discrimination.
29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final action.
BACKGROUND
In her complaint dated July 30, 2007, Complainant, a GS-12 Patent
Examiner, alleged discrimination based on race (African-American), color
(black), sex (female), and national origin (Sierra Leone) when: (1)
her supervisory patent examiner denied her less demanding workflow plan
to comparable white males; and (2) she received negative workflow points
and was issued a "Confirmation of Oral Warning" letter. Upon completion
of the investigation of the complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). On December 22, 2008, the AJ
issued a decision without holding a hearing, finding no discrimination.
The Agency's final action implemented the AJ's decision.
ANALYSIS AND FINDINGS
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. With regard to claim
(1), Complainant claimed that in March 2007, she and her identified male
coworker received oral warnings for exceeding the allowable amount of
errors in their cases based on quality and not for workflow performance.
Report of Investigation (ROI), at Exhibit 6 (Ex. 6). Complainant claims
that after the Oral Warnings, the coworker was given a less demanding
workflow plan and she was not. Id. Despite Complainant's claim, her
first line supervisor stated that Complainant did request a less demanding
workflow plan in July 2007, and she was indeed placed on a less demanding
workflow plan in July 2007. ROI, at Ex. 8. The supervisor indicated
that the coworker was placed on a less demanding workflow plan in October
2006, since he had accumulated a number of negative workflow points during
fiscal year 2006. Id. The supervisor stated that Complainant, however,
did not have negative workflow points in 2006, so she was not placed on a
less demanding workflow plan. Id. Specifically, the supervisor stated
that the coworker had negative 4.4 workflow points and Complainant had
a plus 1 workflow points at the end of fiscal year 2006. Id.
With regard to claim (2), the supervisor stated that Complainant received
an oral warning on July 6, 2007, because she had negative 25.8 points
in May, June, and July 2007. Id. The supervisor further stated that he
issued Complainant the written confirmation of oral warning on July 12,
2007, merely to confirm the foregoing oral warning for workflow issues.
Id. The supervisor indicated that after being placed on a workflow
plan on July 11, 2007, Complainant had not received any more negative
workflow points. Id.
After a review of the record, we agree with the AJ that Complainant
failed to rebut the Agency's legitimate, nondiscriminatory reasons
for the alleged incidents. We do not find the coworkers cited by
Complainant to be similarly situated to Complainant. We do not find any
indication in the record that any alleged Agency action was motivated
by discrimination.
Accordingly, the Agency's final action finding no discrimination 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 tends 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
6/24/10
__________________
Date
2
0120091492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013