0120112253
08-23-2012
Aquinette Bush-Harwell, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Aquinette Bush-Harwell,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112253
Hearing No. 540-2010-00092X
Agency No. 200P06782010100247
DECISION
Complainant filed an appeal from the Agency's February 24, 2011 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. 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 Pharmacy Patient Service Assistant at the Agency's Southern Arizona Veterans Affairs Health Care System facility in Tucson, Arizona. On November 10, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black)1, national origin (African-American), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment that included the following incidents:
1. Complainant received a notice of written counseling dated April 3, 2009; and
2. Complainant received a notice of proposed admonishment dated October 2, 2009.
By letter dated December 4, 2009, the Agency dismissed claim (1) as a discrete action pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that this incident was untimely presented for EEO counseling. The Agency found that Complainant failed to present this claim to an EEO Counselor within 45 days of the time it occurred. The Agency accepted the remainder of Complainant's complaint (claim (2)) and her overall claim of harassment, including the incident (as part of the alleged harassment) described in claim (1). 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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 19, 2011, motion for a decision without a hearing and issued a decision without a hearing on February 24, 2011.
In her Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ found no dispute that Complainant received a written counseling from her supervisor, S1, dated April 3, 2009, that advised Complainant of deficiencies in her performance and problems with her use of leave. The AJ found no dispute that this written counseling was removed from Complainant's personnel file six months later. The AJ further found that Complainant received a proposed letter of admonishment also from S1, dated October 2, 2009, that addressed Complainant's skills at answering customer telephone inquiries, but the AJ noted that the charges in this letter were not sustained, as evidenced by a letter signed by S1, dated November 5, 2009. The AJ observed that the proposed admonishment was later expunged and the evidence indicates that no further action has been taken on it.
The AJ found that Complainant was not aggrieved by the proposed action described in claim (2) inasmuch as no action was taken against Complainant as a result of the proposal or the charges contained therein. The AJ found that insofar as claim (2) is alleged by Complainant to be a part of a pattern of harassment, that the two acts Complainant described in her complaint taken together did not rise to the level of harassment, but were rather, isolated incidents insufficient to create a hostile work environment. The AJ concluded that Complainant failed to present a prima facie case of harassment and the AJ granted the Agency's motion for summary judgment finding no discrimination.
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.
ANALYSIS AND FINDINGS
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. 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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
As a preliminary matter, on appeal, we note that Complainant does not challenge the Agency's dismissal of claim (1) as a discrete act for untimely EEO Counselor contact and we find such a dismissal was proper. We also note, as did the AJ, that given the Agency's acceptance of Complainant's harassment claim, the action described in claim (1) was included in the investigation of the accepted claims.
In the instant case, we find the AJ properly issued her decision without a hearing. We find the material facts are not in dispute and that drawing every reasonable inference in Complainant's favor, Complainant has failed to establish a prima facie case of harassment discrimination on any basis. We find, as did the AJ, that the two incidents described in the complaint viewed together or separately, are neither pervasive nor severe, so as to alter the terms and conditions of Complainant's employment. Furthermore, there is no indication that the incidents were motivated by discrimination. We find the AJ correctly found the incidents described do not rise to the level of harassment. Even if the alleged actions could be considered as deterring a reasonable person from pursuing the EEO process, we still find that Complainant has not rebutted the Agency's legitimate, nondiscriminatory reasons for its actions or shown in any way that they were motivated by retaliation. We discern no basis to disturb the AJ's Decision finding no discrimination.
CONCLUSION
We AFFIRM the Agency's Final Order.
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 (Nov. 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).
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
August 23, 2012
__________________
Date
1 Complainant added the basis, race (Black), while the complaint was pending before the Administrative Judge.
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0120112253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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