01A12162
07-11-2001
Valerie D. Hardy, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Valerie D. Hardy v. Defense Contract Management Agency
01A12162
July 11, 2001
.
Valerie D. Hardy,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 01A12162
Agency No. XL00019
Hearing No. 130-AO-8310x
DECISION
Valerie D. Hardy (complainant) timely initiated an appeal from the
agency's final decision concerning her equal employment opportunity
(EEO) complaint of unlawful discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was subjected to retaliation on the basis of prior
EEO activity (providing testimony in an EEO investigation/hearing) when:
(1) she was denied an upgrade in November 1999; and
(2) she received a Letter of Warning concerning her use of leave on
January 18, 2000
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Secretary at the agency's
Birmingham, Alabama facility, filed a formal EEO complaint with the
agency on March 9, 2000, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of retaliation. Specifically, the AJ found that complainant failed to
raise a genuine issue of material fact in that she failed to demonstrate
that there was a causal connection between her prior protected activity
and the events at issue. The AJ noted that complainant's prior activity
involved testimony in an EEO hearing of a colleague in January 1997
and that the events in question took place during and after November
1999, more than 2 years after complainant's protected activity. The AJ
determined that this was too remote a period to establish the required
causal connection.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Management officials testified
that complainant was denied an upgrade and received a letter concerning
her leave usage because she was using an excessive amount of leave.
Although agency officials acknowledged that complainant performed well
when at work, they noted that she was absent about 40% of the time.
The Division Chief (DC) and complainant's immediate supervisor (S1)
noted that this made her unreliable and prevented her from receiving
the duties that would justify an upgrade. The AJ found that complainant
presented no evidence to suggest that this explanation was a pretext for
a retaliatory motive and concluded that she failed to raise a genuine
issue of material fact as to whether she was subjected to discrimination.
The AJ recommended a finding of no discrimination, which the agency
adopted in its final decision.
Complainant makes no contentions on appeal, and the agency requests that
we affirm its final decision.
The 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
Here, the AJ correctly determined that there is no genuine issue of
material fact as to whether complainant was subjected to retaliation.
In so finding, we note that even assuming complainant established a prima
facie case of retaliation, she failed to raise a genuine issue as to the
agency's legitimate non-discriminatory reason for its actions. DC and
S1 testified that complainant was absent about 40% of the time during the
three years preceding and including November 1999 and that they therefore
felt she was not ready for an upgrade and needed to be cautioned as to
her use of leave. They also testified that she had a negative sick leave
balance during this period. Complainant did not dispute that she was
absent to this extent, nor that her sick leave balance was negative.
Rather, she argued that her upgrade should not have been influenced
by her use of leave, but instead should have been based soley on her
performance appraisals, which established that she was doing her job.
She also argued that she should not have been given a letter of warning
for using leave that was hers to use under the Family Medical Leave Act.
We note, however, the fact that complainant believes the agency should
have used different criteria in making its decisions does not raise a
genuine issue as to whether retaliatory animus motivated the actions
at issue. Complainant did not name any individuals with similar leave
who was treated more favorably, nor did she raise any other evidence
to suggest that the agency's actions were motivated by retaliation.
Complainant appears to rely solely on the fact that almost three years
prior to the incidents in question, she participated in EEO activity.
This is insufficient to raise a genuine issue of material fact as to
whether discrimination occurred.
As a final matter, we note that complainant stated in her affidavit
that after she filed her complaint, she was again retaliated against
when she was given a lower monetary award than others on her team
and when S1 created a hostile work environment based on the actions
discussed above and similar actions. While the AJ neglected to address
these issues, a careful review of the record reveals that, like those
issues discussed by the AJ, these fail to raise a genuine issue of
material fact. DC and S1 testified that complainant received 60% of
the monetary award that others on her team received because she was only
there 60% of the time. They testified that it was common practice for
supervisors to base awards on each individual's performance. Complainant,
while noting that she was only familiar with an �All or Nothing� award
system under which everyone on a team receives the same monetary award,
did not dispute that another system exists under which supervisors can
vary awards based on individual performance. Moreover, complainant did
not allege that others with leave records similar to hers, who had not
engaged in protected activity, received better treatment in regard to
monetary awards. In addition, complainant failed to raise any evidence
to suggest that she was subjected to a hostile work environment on the
basis of her prior protected activity.
Accordingly, we find that complainant failed to raise a genuine issue of
material fact as to whether she was subjected to retaliation. We discern
no basis on which to disturb the AJ's decision. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 11, 2001
Date