0120110594
11-21-2012
Brenda T. Raney, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Brenda T. Raney,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110594
Hearing No. 461-2010-0053X
Agency No. ARPOLK09AUG03601
DECISION
On October 8, 2010, Complainant filed an appeal from the Agency's October 6, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a contract social worker at the Agency's Bayne Jones Army Community Hospital (BJACH) facility in Fort Polk, Louisiana. On September 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (Black), age (62), and reprisal for prior protected EEO activity when1: (1) management requested that she be terminated from her contract position, effective August 27, 2007; and (2) in March, April, and July 2009, she was not selected for any contract social worker positions based upon the negative recommendations from Agency management officials.
The Agency dismissed claim (1), by notice dated October 13, 2009, for untimely EEO counselor contact. Thereafter, at the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ found that, after viewing the evidence in a light most favorable to Complainant, a decision without a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ issued a decision without a hearing on September 21, 2010, affirming the Agency's dismissal of claim (1), and finding no discrimination as to claim (2). The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant reiterates her contention that claim (1) should not be dismissed and that she was subjected to unlawful discrimination. Complainant also contends that the statements of management officials and other Agency employees are not worthy of belief.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from an agency decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). 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 102, 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, it is not appropriate for an AJ to issue a decision without a hearing. In the context of an administrative proceeding, an AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing was appropriate, as no genuine dispute of material fact exists.2 Further, we concur with the AJ's dismissal of claim (1) for untimely EEO counselor contact, pursuant to 29 C.F.R. �1614.107(a)(2). EEOC Regulations require that complaints of discrimination be brought to the attention of an Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory, or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, we find that Complainant has not presented sufficient evidence to warrant a waiver or tolling of the time for initiating the EEO process. The record reveals that, at the earliest, Complainant's initial EEO contact occurred in February 2008, which is more than 45 days from the effective date of the termination of her employment. Accordingly, we affirm the dismissal of claim (1).
Finally, to prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).
Here, we concur with the AJ's determination that assuming, arguendo, Complainant established a prima facie case of race, age, and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. The record reflects that Complainant retired from her Discharge Planning Coordinator position at BJACH in January 2005. Complainant was then hired as a contract social worker at BJACH in August 2007. The record further shows that, shortly thereafter, Agency management recommended Complainant's termination from her contract position for cause. Complainant contends that following her removal from her contract position, she applied for numerous other contract social worker positions at BJACH but was not selected due to negative references from Agency management officials. The contracting officer representative, however, states that she was advised by the regional contracting office that "it would not be legally correct or ethically correct" to rehire Complainant in another contract position after she had been terminated from her previous contract position for cause. We find that Complainant has not shown that the Agency's articulated reasons are pretextual. Additionally, we find that Complainant has proffered no evidence, beyond her mere assertions, that Agency management officials did not refer her for another contract position as the result of discriminatory or retaliatory animus.
CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are no genuine issues of material fact. We further find that the AJ appropriately issued a decision without a hearing. Therefore, we discern no basis to disturb the AJ's decision and the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 21, 2012
__________________
Date
1 In her formal complaint, Complainant also alleged that she was discriminated against on the basis of her disability, however this basis was withdrawn by Complainant during the investigation and will not be addressed on appeal.
2 For purposes of summary judgment the AJ assumed the Agency was a joint employer. There is no need to decide in this decision whether the Agency was a joint employer, because we agree with the AJ that all reasonable inferences must be made for Complainant when determining if a decision without a hearing is appropriate.
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0120110594
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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