01-2006-2795_Montoya
06-06-2008
Karen L. Montoya, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.
Karen L. Montoya,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Threat Reduction Agency),
Agency.
Appeal No. 01200627951
Agency No. DTRA05BD001
Hearing No. 350-A5-0197X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 6, 2006 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. Complainant alleged that the
agency discriminated against her on the basis of sex (female) when: (1)
on or about November 2003, agency officials became aware the complainant
alleged she was sexual assaulted by her supervisor, a military officer
on August 6, 1999, and became aware of her allegation of subsequently
working in a hostile work environment until his departure in 1999,
and agency officials failed to take swift remedial actions to remove
and/or cancel this military officer's reassignment orders to return to
the agency, and permitted him to report for duty on July 6, 2004; and
(2) from March 22, 2004, to the present, agency officials have failed
to immediately reassign her outside the agency, to provide her with
continued employment in a safe environment free of hostility and abuse.2
We must first determine whether it was appropriate for the Administrative
Judge (AJ) to have issued a decision without a hearing on this record.
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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
UNDISPUTED FACTS
During the relevant time, complainant worked as a Program Assistant,
GS-303-07 for the Defense Threat Reduction Agency ("DTRA") in CSNO
(Stockpile Operations) in Albuquerque, New Mexico. A Lieutenant Colonel
(LTC) was her immediate supervisor from approximately 1999-2001. After a
staff meeting in November 2003, where a Major (MAJ) informed the staff
that LTC was returning to the agency in Albuquerque, complainant notified
MAJ that she would press sexual harassment charges against LTC. This was
the first time that complainant notified a member of DTRA management
that she had been sexually harassed by LTC.3 Complainant opted not to
provide details to MAJ concerning her allegation.
The following week, MAJ informed his immediate supervisor (S2) of
complainant's statement regarding sexual harassment. After notifying MAJ
of her allegation, complainant would inquire weekly as to whether LTC
would be returning to the DTRA. MAJ kept S2 apprised of complainant's
concerns that LTC may return to the DTRA. In January 2004, MAJ was
informed by S2 that LTC would not be reassigned to the DTRA. Neither MAJ
nor S2 ever sought additional information from complainant regarding
her allegations.
On or about March 24, 2004, complainant was informed that LTC would return
to the DTRA. She then wrote a letter to the Civilian Personnel Officer
stating that LTC stalked her and was obsessed with her. The letter
was shared with MAJ. Management notified the chain of command about
complainant's allegations. On or about April 7, 2004, complainant spoke
with her third-line supervisor (S3) to discuss scheduling an in-person
meeting. On April 13, 2004, LTC dropped by the DTRA. Complainant hid in
a coworker's office during LTC visit. Complainant was reportedly visibly
frightened and in tears regarding the visit. On April 20, 2004, S3 flew
from headquarters in Washington, D.C. to Albuquerque and spoke privately
to complainant. Complainant informed S3 that "something bad happened"
between her and LTC. Complainant did not provide any details, and did not
respond to S3's question regarding whether LTC had raped complainant.
In response to complainant's allegation, the Inspector General's office
conducted a formal interview with complainant. The agency referred the
matter to the Army Criminal Investigative Service. After S3's visit,
complainant was in contact with a Civilian Personnel Officer attempting to
apply for positions that would take her away from any contact with LTC.
In May 2004, complainant requested reassignment. In May 2004, the Chief
of Staff of DTRA (COS), contacted the Army Human Resources Command and
requested that LTC's orders be stopped. Initially, the Army agreed
to stop the assignment, but subsequently concluded that the DTRA did
not have the right to stop the assignment based purely on allegations.
COS also attempted to hold LTC at his current command pending completion
of the investigation. The Army did not comply with this request and LTC
reported to DTRA in July 2004. At the time, complainant was on leave
without pay. She had also been detailed out of her prior position,
and in August 2004, she was permanently reassigned.
AJ'S ANALYSIS AND CONCLUSIONS
The AJ concluded that assuming the agency's failure to take action
could sustain complainant's burden of presenting a prima facie case
of discrimination, she has not rebutted the agency's legitimate
non-discriminatory reasons as pretext.4 The agency reported that it
had been notified after the announcement in November 2003, that LTC
would not be reporting to DTRA. When the agency learned later that LTC
was returning, the agency began an investigation and made efforts to
obtain specific information from complainant regarding her allegation.
As a result of complainant's claims, the agency also attempted to stop or
delay LTC's return to DTRA. The agency stated that it was unable to have
the Army comply with the request. The agency then granted complainant's
request to transfer to another location. The AJ also notes in his
decision that complainant contends that the agency should have transferred
her to another agency. However, the AJ concluded that the record is
devoid of evidence establishing that the agency had the authority to take
this action, or any other individual had been transferred in this way.
Clearly, complainant believed that the agency should have taken more
immediate action regarding her report, however, there is no evidence
that the agency failed to take action due to a discriminatory motive or
that complainant was the victim of sexual harassment as a result of any
alleged delay in the agency's investigation.
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
June 6, 2008
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 Complainant withdrew her claims of reprisal and discrimination based
upon national origin and age.
3 The AJ concluded that complainant's allegations of sexual harassment
were untimely.
4 Complainant is not alleging sexual harassment, but the potential for
future sexual harassment.
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0120062795
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036