0120092610
09-03-2009
Sonia Smith, Complainant, v. Charles E. F. Millard, Interim Director, Pension Benefit Guaranty Corporation, Agency.
Sonia Smith,
Complainant,
v.
Charles E. F. Millard,
Interim Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 0120092610
Agency No. 07-05
Hearing No. 570-2008-00165X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's May 5, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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 basis of reprisal for prior EEO activity when:
on November 7, 2006, she received an e-mail from her supervisor questioning a comment she made during a meeting on October 27, 2006. 1
The record reflects that beginning in June 2006, bargaining unit employees who worked a regular schedule (i.e. eight hours per day, five days per week) were permitted to use flexi-place as much as two days per week. The record further reflects that before September 2006, complainant's position had been a non-bargaining unit position, and she worked a 5/4/9 schedule with one flexi-place day during the week in which she was scheduled to work for five days. Thus, under this arrangement, complainant was at the workplace for four days each week. In September 2006, complainant's position was converted from a non-bargaining unit position to a bargaining unit position.
On October 4, 2006, complainant requested approval from her supervisor (S1) to participate in the bargaining unit flexi-place program. Specifically, complainant requested that her flexi-place privileges be increased from one day per pay period to three days per pay period. In his October 26, 2006 memorandum, S1 notified complainant that she could continue to be on a 5/4/9 schedule and have one flexi-place day per pay period. S1 stated, however, that his determination to increase her flexi-place days was limited because her duties included being the Division-wide program manager for the ARTIS software system and an actuarial advisor to the Appeals Board "which are more important responsibilities often requiring face-to-face coordination and not easily accomplished from home."
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 31, 2009, the AJ issued a decision by summary judgment in favor of the agency. On May 5, 2009, the agency fully implemented the AJ's decision in its final order.
The AJ found that complainant did not show by a preponderance of the evidence that she was discriminated against on the basis of reprisal.
S1 stated that after a board meeting in the afternoon on October 26, 2007, he informed complainant "I had intended to discuss my decision on her flexiplace that afternoon, but it was late and I had a severe headache. I told her that I had made my decision and that I was giving her a memo wherein I had approved, in part, and denied, in part, her request for flexi-place. I asked her to read the memorandum this evening so we could talk about it the next morning." S1 further stated that on October 27, 2007, complainant came to see him and expressed her "displeasure" about his decision not to immediately approve her taking three flexi-place days every 2-week pay period. Specifically, S1 stated that he told complainant "I was very concerned about her backlogged case inventory. She had the second largest number of FY05 cases among our nine primaries, the largest percentage of old FY05 cases to total inventory, and the three oldest cases in the Appeals Division."
S1 stated as he was explaining his rationale, complainant "sort of out of the blue, said: 'This is like Jim Crow.' This took me by surprise, because there is no racial aspect to our relationship or this discussion or decision. So I asked her what she meant by that comment. She said she meant my decision was 'unfair.'" S1 stated that complainant "wanted to keep arguing about my decision and was verbally combative. I had to tell her that she was dismissed twice before she left my office." S1 stated that on that particular day, he sent a memorandum to the Deputy General Counsel (D1) requesting guidance. Specifically, S1 stated that during the October 27, 2007 meeting, complainant "characterized my decision as being like 'Jim Crow.' I know the history of 'Jim Crow' discrimination in the United States and it bothered me that she would link those words to my management decision. I decided that I would seek guidance from my boss [D1], on how to address [complainant's] comment as her immediate supervisor."
Further, S1 stated that because of business issues and schedule conflicts, he was unable to see D1 until November 1, 2006. S1 stated that during their meeting, D1 "suggested that I wait a few days to let things cool down and then attempt to open a line of communication with [complainant]. Rather than ask her verbally about the comment, he suggested that I send her a non-confrontational, low-key email message and give her an opportunity to come in and talk about the 'Jim Crow' comment or not to do so." S1 stated that D1 also told him to talk to two named labor attorneys for their advice and to review the content of his email. S1 stated that he took D1's advice and drafted the email. S1 stated that the two named attorneys "reviewed the content of the short email message together and they told me they thought the context was fine. I waited a few days, per [D1's] guidance, and then sent her the email on November 7, 2006."
D1 stated that he could tell S1 was disturbed by the Jim Crow comment complainant made during the October 27, 2006 meeting and "during our conversation, he expressed his need to do something about it. I believe that he suggested that an email would be the best way to address it and I concurred."
On appeal, complainant argues that the AJ "ignored the evidence that [complainant's] cases were older because they were more difficult and complicated. [S1] used that as a pretext to deny complainant flex-place days." Complainant further argues that the AJ ignored S1's November 7, 2006 e-mail as a pretext. Specifically, complainant stated that S1 "knew exactly what Jim Crow meant. He sent the email of 11/7/06 only after the Complainant had made contact with the EEO office." Complainant argues that the AJ also ignored the fact that S1 received a call from the EEO office on November 6, 2006, the day before he sent her the email questioning a comment she made during the October 27, 2006 meeting.
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
September 3, 2009
__________________
Date
1 The record reflects that complainant also alleged that she was discriminated against on the basis of race but ultimately decided to pursue the claim solely on the basis of reprisal.
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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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