0120073411
10-30-2007
Alma Garcia, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Alma Garcia,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120073411
Agency Nos. 2006-20214-FMCSA-05
2006-20410-FMCSA-05
Hearing No. 451-2007-00054X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 19, 2007 final order concerning two
equal employment opportunity (EEO) complaints of unlawful 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, a Safety Auditor, GS-2123-11/03, at the agency's Brownsville,
Texas facility, filed the two captioned formal complaints on January
10, 2006. The record reflects that a
Safety Auditor is primarily responsible for the promotion and enforcement
of Federal Motor Carrier Safety Regulations and Hazardous Material
Regulations by conducting on-site inspections of trucking companies at
their principal place of business and by conducting vehicle inspection
of trucks crossing the Mexican border
On April 8, 2004, complainant sustained a workers' compensation injury
when, while exiting her rental car at a hotel, she was accosted by two men
who stole her purse. Complainant received scratches to her knees, chest,
and hands and was bruised when she was knocked to the ground. On August
2, 2004, complainant's physician placed her on travel restrictions and
indicated that she could not perform any under vehicle inspections.
The record reflects that because complainant could not travel or perform
any under vehicle inspections, she performed desk-related functions in
the Brownsville, Texas office. During the relevant time, the agency
sent complainant a letter requesting that she provide information from her
physician whether she would be on indefinite travel restriction, so that
management could either reclassify her position or find another position
for her. On August 30, 2005, complainant's physician released her to
travel overnight without a restriction of one week intervals per month.
Agency No. 2006-20214-FMCSA-05
In Agency No. 2006-20214-FMCSA-05 (hereinafter referred to "Complaint 1"),
complainant claimed that she was discriminated against on the bases of
sex (female) and in reprisal for prior EEO activity when:
during the time period August 9, 2004 through September 18, 2005, she
was subjected to a hostile work environment.
Complainant listed the following examples of hostile work environment
incidents: (1) a secretary was sent to her physician's office to obtain
medical information; (2) her husband was called at his job over his
personal cellular phone; (3) a Safety Auditor was sent to her house
when she was on scheduled annual leave; (4) an Administrative Assistant
called her at home when she was on leave; and (5) she was given a poor
performance evaluation in August 2005.
On February 10, 2006, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO
counselor contact.
On appeal, the Commission reversed the agency's dismissal and remanded
the complaint to the agency. On remand, the agency was ordered to
process the remanded complaint in accordance with 29 C.F.R. � 1614.108.
Garcia v. Department of Transportation, EEOC Appeal No. 01A62337 (June
30, 2006).
Agency No. 2006-20410-FMCSA-05
In Agency No. 2006-20410-FMCSA-05 (hereinafter referred to "Complaint 2"),
complainant claimed that she was discriminated against on the basis of
her prior EEO activity when:
1. a travel voucher that she submitted on December 9, 2005, took 30 days
to be approved and 34 days to be paid;
2. a travel voucher that she submitted on December 20, 2005, took 19
days to be approved and 23 days to be paid; and
3. on January 6, 2006, she was not permitted to attend a staff meeting.
On October 17, 2006, the agency consolidated for investigation Complaints
1 and 2.
At the conclusion of the investigation of Complaints 1 and 2, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On an
unspecified date, the AJ issued a decision without a hearing, finding no
discrimination concerning Complaints 1 and 2. Therein, the AJ determined
that in regard to Complaint 1, the agency properly determined that the
complaint basically fell into four separate categories: 1) the agency's
request for medical information concerning her ability to work; 2)
the July 2005 performance appraisal; 3) Veterans Port of Entry (VEP)
Work Assignments; and 4) her supervisor's call to her husband's personal
cell phone.
The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext. Specifically, the AJ found that the agency made
several requests for medical information in order to ascertain when and
if complainant might fully resume her Border Auditor duties. The AJ
further determined that 29 C.F.R. � 10.506 prohibits an employer from
contacting a physician by telephone or personal visits; however, the
AJ determined that the Administrative Assistant (AA)'s hand delivery of
the letter to complainant's physician did not violate this restriction.
Regarding complainant's July 2005 performance appraisal claim, the
AJ acknowledged that while the appraisal showed that complainant met
the "Meets Requirements" rating, the appraisal included some negative
comments about her performance. The AJ found, however, that according
to complainant's first-level supervisor (S1) the negative comments
were not part of complainant's appraisal but were instead attached in
a separate document as items that S1 wanted to review with complainant
about her work. The AJ found no evidence in the record indicating that
these comments were included as part of complainant's annual performance
appraisal or in her official personnel file.
Regarding complainant's VPE Work Assignments, the AJ noted that S1
assigned complainant to the VPE for a period of time because it was
necessary for her to obtain her Level 1 and V inspections required
for her annual certification; and because there was a high volume of
motor vehicles coming into the United States from the VPE. Regarding
complainant's claim that AA called her at home while on annual leave
and that a Safety Auditor stopped by her house for the purposes of her
sign the appraisal, the AJ noted that S1 stated that he did not intend
to offend complainant but did not realize before she went on leave that
her appraisal was due to be turned in. Regarding complainant's claim
that S1 contacted her husband on his cell phone, the AJ noted that S1
explained that complainant previously provided him with a telephone where
she could be reached and that he dialed the number but had not intended
to call complainant's husband.
With respect to Complaint 2, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for the delay in processing
complainant's travel vouchers and for not including her in the January 6,
2006 meeting which complainant failed to show was a pretext. Regarding
claim 1, the AJ noted that evidence in the record reflects that the
agency's computer-generated GovTrip voucher timeline indicated that
complainant created and signed her travel voucher on December 30, 2005,
not on December 9, 2005 as claimed by complainant. The AJ did not find
the passage of five business days between complainant's submission of
her voucher and S1's approval to be discriminatory.1
Regarding claim 2, the AJ noted that while complainant submitted her
voucher on December 20, 2005, she did not submit the appropriate airline
documentation and was required to make corrections. The AJ further found
that within 24 hours of complainant's submission of a fully documented
travel voucher on January 6, 2006, S1 reviewed and approved it.
Regarding claim 3, the AJ noted that on January 6, 2006, S1 held a
meeting to thank his employees whom he supervised for their hard work
and to make an announcement that he would be taking a new position with
the agency in Austin, Texas. The AJ further noted that according to S1,
he did not invite complainant to the meeting because he was no longer
her supervisor. The AJ found that it appeared complainant's feelings
were hurt because she, a GS-11, was required to answer the telephones
for a short period of time. Furthermore, the AJ found that complainant
failed to demonstrate that there were lower-graded personnel available
whom S1 did not supervised, and that S1 properly instructed complainant
to answer the telephones while he addressed his employees.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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.
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 discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 30, 2007
__________________
Date
1 The record reflects that because complainant claimed S1 created a
hostile work environment for her, S1 was removed from her chain of command
and complainant began to report directly to her second-level supervisor.
Notwithstanding this change in supervision, S1 continued to be the final
reviewing and approving official for complainant's travel vouchers.
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0120073411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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