0120140018
03-25-2016
Anya V.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anya V.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120140018
Hearing No. 570-2012-00196X
Agency No. DO110483
DECISION
Complainant timely filed an appeal from the Agency's September 14, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented herein are (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to issue a ruling without a hearing was proper; and (2) whether Complainant proved discrimination by preponderant evidence when she was allegedly subjected to a hostile work environment.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Secretary, GS-0318-8, at the Agency's Office Budget, Finance and Administration, Office of Special Trustee for American Indians, a component of the Office of the Immediate Secretary, stationed in the Main Interior Building located in Washington, D.C. On January 31, 2008, Complainant filed an EEO complaint alleging discrimination on the basis of race (African-American) when she allegedly was subjected to a hostile work environment. Specifically, Complainant alleged that the following acts constituted racial harassment:
1. On January 3, 2011, her supervisor (S1) responded rudely when she questioned the purpose of his trip in order to complete a travel form on a federal government's travel system;
2. On December 21, 2010, S1 informed the Office of Law Enforcement of his plan to terminate Complainant's employment based on a program running in the background of her computer;
3. On unspecified dates, S1 assigned her a task not commensurate with her pay grade and position description;
4. On October 28, 2010, S1 allowed another employee to threaten and swear at her;
5. On June 12, 2010, S1 requested her personal e-mail address;
6. In 2009, S1 put his shoe in her chair to tie his shoe;
7. In May 2008, S1 cancelled her pre-approval to attend a training course;
8. In May 2008, she overheard S1 say, "The one we thought we could trust, we could not," which Complainant interpreted as a reference to African-Americans;
9. On May 13, 2008, S1 failed to address her concerns regarding interactions with a co-worker;
10. In 2007, S1 told her that he knew lower-graded supervisors who did more work than she did;
11. In 2007, S1 denied her request for college-tuition reimbursement;
12. In 2006, S1 requested she type a document in 15 minutes;
13. On unspecified dates, S1 accused her of stealing, making belittling comments, and lacking the skills necessary to perform her duties; and
14. On unspecified dates, S1 denied her requests for assistance.2
The Agency accepted Complainant's claim for investigation and, at the conclusion of the investigation, provided Complainant a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant requested a hearing.
The Agency filed a motion for a decision without a hearing on February 15, 2013. Complainant did not submit an opposition statement to the Agency's motion. The AJ assigned to the case granted the Agency's motion and ruled that Complainant did not prove discrimination as alleged, and did not establish that she had been subjected to a hostile work environment based on her race. The Agency subsequently issued a final order adopting the AJ's ruling in full. Complainant filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ showed deferential treatment toward the Agency. She further contends that her case was transferred to a new AJ because the previous AJ agreed with her that the Agency engaged in discriminatory treatment. Finally, she states that she will take this matter to the President of the United States and the media to expose how the Agency conducts its business. The Agency submitted no contentions on appeal.
STANDARD OF REVIEW
As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a Hearing
We now consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. 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.
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. Dep't of Def., 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Complainant stated in her appeal that she did not respond to the Agency's motion because she believed the evidence was on her side to prevail. Thus, we find that the AJ's decision to issue a decision without a hearing was proper.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleges a hostile work environment on the basis of race regarding the fourteen allegations stated in the "Background" portion of this decision. To establish a claim of hostile environment harassment, Complainant must show that: 1) she is a member of a statutorily protected class; 2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; 3) the harassment complained of was based on the statutorily protected class; 4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and 5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
Regarding Complainant's allegation of a hostile work environment, the AJ found the following relevant facts. On January 3, 2011, S1 asked Complainant to complete the required forms in a federal government travel system to arrange a business trip for him, and when Complainant inquired about the purpose of the trip, S1 stated that he was traveling to assist his staff located at the business trip's location (i.e., Albuquerque, New Mexico); Complainant believed S1's response was condescending. S1 informed the Office of Information Technology (OIT) about a program running in the background of Complainant's computer, which Complainant believed was done so that S1 could monitor her activities. The AJ found that OIT conducted an investigation and found nothing unusual.
On October 28, 2010, Complainant became involved in an altercation with a co-worker, an African-American, concerning the use of a workplace computer. Complainant contacted S1 and security officials about the altercation. S1 informed Federal Protective Service about the matter and documented the incident.
On June 12, 2010, S1 sent Complainant and other employees an email requesting their personal email addresses so that he could inform them of emergency situations such as when the government was closed due to inclement weather. Complainant, due to her position as Secretary, maintained this information in the Office's Continuity of Operations Plan. S1 commented to the Budget Officer about an employee (Asian-American) who had falsified his time and attendance record. During this conversation, S1 stated that "the one we thought we could trust, we cannot." Complainant reported to S1 that the Budget Officer had been rude to her. S1 documented the incident with a memorandum to both employees, which resulted in the Budget Officer apologizing to Complainant.
Complainant was approved to attend a training program, which approval later was rescinded because she was needed in the office to assist with a project. The AJ noted that Complainant ultimately attended and completed the course.
The AJ then found that while these events occurred, Complainant provided no evidence which would establish that the events occurred because of her race. The AJ then considered the remaining incidents of discrimination, that is, allegations 3, 10, and 12-14, and found they were not individually or collectively sufficiently severe or pervasive enough to rise to the level of a legally hostile work environment.
After a review of the record, we find that the AJ's determination should be affirmed. Complainant does not establish that the incidents were so severe or pervasive that a hostile work environment based on her race existed. We also find that there is no indication in the record that the AJ showed deferential treatment toward the Agency, or that Complainant's case was transferred to a new AJ because the previous AJ agreed that the Agency had engaged in discrimination against Complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a ruling without a hearing was proper, and that Complainant did not prove by preponderant evidence that she was subjected to a hostile work environment based on race. Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 25, 2016
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 On January 25, 2012, Complainant requested that the AJ amend her complaint to include additional allegations of harassment and the basis of reprisal. Upon denying Complainant's request, the AJ informed Complainant that she might seek additional EEO counseling and consider filing an additional complaint. Complainant does not challenge the AJ's denial on appeal; therefore, that matter is not considered as the Commission exercises its authority to review only the issues specifically raised on appeal and declines to review uncontested aspects of the Agency's final order. See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at � IV.A (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.").
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