0120092408
11-19-2009
Barbara Webb-Edwards, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Barbara Webb-Edwards,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120092408
Agency No. 200821741FMCSA02
DECISION
On May 7, 2009, complainant filed an appeal from the agency's April
6, 2009 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
(1) Whether the AJ properly issued a summary judgment decision; and (2)
whether the agency discriminated against complainant and subjected her
to a hostile work environment on the bases of race (African-American),
age (54), sex (female) and in reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Division Administrator (DA) for the Federal Motor Carrier
Safety Administration (FMSCA) at the agency's Maryland Division
Office. Complainant was responsible for directing the enforcement
functions for the state of Maryland. Complainant was also responsible
for managing federal grants to state partners and supervising the Safety
Investigators and other office staff assigned to the division.
A component of FMCSA's safety mission is the New Entrant Program (NEA),
which audits the safety and compliance of newly formed or newly entering
motor carriers within the first 18 months of operation to ensure that
they meet FMSCA regulations. Complainant's office was responsible
for performing monthly checks of the computer system to ensure
that MSP is performing the required number of carrier safety audits.
For jurisdictional purposes, the five southernmost counties in the state
of Maryland used to be assigned to the District of Columbia Division.
However, on August 24, 2006, FMCSA management initiated communications
with complainant and the District of Columbia DA regarding the impending
realignment of the DC NEA program to the MD Division. On January 16,
2007, complainant's supervisor, the Field Administrator (S1), formally
realigned the NEA program to the MD division. And on December 18, 2007,
S1 approved the jurisdictional realignment of the five Maryland counties
back to the Maryland division. Consequently, the enforcement program
for the five Maryland counties was transferred back to the MD Division
office, and plans were established to unify the state of Maryland back
to a single jurisdictional entity.
On December 21, 2007, complainant filed an EEO complaint alleging: (1)
she was discriminated against on the bases of race (African-American),
sex (female), and age (54) when on October 29, 2007, she received a
performance rating of "Achieved Results" (AR), and on October 29, 2007,
she received a lower bonus/performance award; (2) she was subjected to a
hostile work environment on the bases of race, sex, and in reprisal for
prior EEO activity when S1 constantly scrutinized her, treated her in
a belligerent manner and micro managed her work; and (3) she suffered
disparate treatment in reprisal for prior EEO activity when: (i) on
November 27, 2007, she was formally investigated; (ii) on November 28,
2007, her workload was increased to include five additional counties;
and (iii) on November 28, 2007, a subordinate employee was reassigned.
As noted in the record, S1 maintained that complainant's AR performance
evaluation rating was appropriate, as it was based upon an assessment
of both her work performance and disciplinary issues; which, S1 noted,
included matters relating to insubordination. S1 further maintained
that complainant's cash award was commensurate with complainant's AR
rating and her position as a District Administrator.
According to the record, in August 2007, S1 received complaints from
employees in the MD Division office, alleging that complainant subjected
them to harassment. In turn, S1 reported the complaints to complainant
and raised the issue during her October 2007 performance evaluation.
Acting in response to agency policy established under the No Fear Act1,
S1 instructed the ESC Service Center Director (S2) to conduct an inquiry
into the allegation and compile a report. The record indicates that
the inquiry was conducted during the period of November 15-16, 2007;
the report recommended that the employee(s) who felt harassed should
be voluntarily reassigned to avoid any escalation to an actual EEOC
complaint. Subsequently, the record indicates that in response to
repeated complaints, a MD Division Safety Investigator (complainant's
subordinate employee) was reassigned to the Virginia Division.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's December 15, 2008 motion for a decision
without a hearing and issued a decision without a hearing on March 15,
2009. The AJ found that with respect to claim (1), complainant had not
shown that the agency's legitimate, non-discriminatory reasons for its
actions were pretextual. With respect to claim (2), the AJ found that
complainant had not shown that she had experienced conduct sufficiently
severe or pervasive as to characterize a hostile work environment.
Finally, with respect to claim (3), the AJ found that complainant had
not shown that agency's legitimate, non-discriminatory reasons for
its actions were pretextual. The AJ concluded that complainant had not
raised genuine issues of material fact or credibility that would require
a hearing on the issues presented. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, through her representative, complainant reiterates the
arguments she made in her brief before the AJ. Complainant contends that
she has stated a claim of discrimination and retaliatory conduct and
requests that Final Agency Decision be reversed and the claim remanded
for a hearing on the merits. In its appeal brief, the agency contends
that the AJ properly granted summary judgment because complainant did
not prove prima facie claims of reprisal or harassment; accordingly,
the agency requests that the Final Agency Decision be affirmed.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the 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).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted.
ANALYSIS AND FINDINGS
Claim (1) - Disparate Treatment Based on Race, Sex, and Age
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant has established a prima facie claim,
we find that complainant failed to establish that the agency's legitimate,
nondiscriminatory reasons for her performance rating and the size of
her cash award were a pretext for discrimination. Complainant contends
that the agency discriminated against her on the basis of race, sex,
and age when she received a performance rating of "achieved results"
and a lower performance award. The record shows that S1 assigned
the AR rating according to standard agency procedures; the rating was
established according to criteria applicable to all agency managers and
supervisors. Complainant's performance evaluation rating was based on her
work performance as well as conduct and discipline issues, which included
counseling for failing to follow directions and for traveling without an
approved travel authorization. Further, while complainant alleges that
comparators outside of her protected classifications received higher
ratings, she has not shown, and in fact, admits that she is unaware of
the performance ratings of comparator District Administrators.
Complainant also contends that she was entitled to a larger cash award
than the $1,000 award she received. Complainant argues that under agency
policy, she was entitled to an award of up to two percent of her gross
income and maintains that she deserved an award of $2,000. The record
shows that three white male District Administrators, two of whom had
also been assigned ratings of AR and one of whom had been assigned
a rating of "Exceeded Expectations," had received awards of $1,000;
while one white male District Administrators, who was also assigned an
"AR" rating, received less than $1,000. According to agency policy,
the awards are not based on a fixed formula; rather, they are assigned at
the discretion of management. After a careful review of the record, we
find that complainant's award was not incommensurate with her AR rating
and position as a District Administrator. Complainant has provided no
evidence indicating that the amount of her cash award was based on her
protected classifications. Accordingly, we find that complainant has
presented no evidence indicating that agency's reasons for its actions
were pretextual.
Claim (2) - Hostile Work Environment
To establish a claim of harassment based on race, sex and in reprisal for
prior protected activity, 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; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Complainant argues that she was subject to a hostile work environment
on the basis of race, sex and in reprisal for prior EEO activity
when her supervisor (S1) constantly scrutinized her, treated her in a
belligerent manner and micro-managed her work. Upon review, however,
we find that complainant has not shown that she was subject to harassment
which was sufficiently severe or pervasive as to characterize a hostile
work environment.
Complainant maintains that the "belligerent manner" and "raised voice"
in which S1 communicated with her in telephone calls as facts which
contributed to a hostile work environment. Complainant further contends
that S1 micromanaged her work, with the effect that she felt "disheartened
and frustrated." However, complainant has provided no evidence showing
that the unwelcome verbal conduct was based on her statutorily protected
classifications. Instead complainant has shown conduct which is
consistent with normal workplace discord, which fails to comprise a
work environment so imbued with animus as to adversely affect a term
or condition of employment. Accordingly, we find that complainant has
failed to show that she was subject to a hostile work environment.
Claim (3) - Disparate Treatment in Reprisal for EEO Activity
A 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. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S.). 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. Department of Veteran Affairs,
EEOC Request No. 05960473 (November 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. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Complainant alleges that she was subject to disparate treatment in
reprisal for EEO activity when: (i) there was an internal investigation
conducted into allegations of harassment made by her subordinate staff,
(ii) there was a jurisdictional realignment of the five southernmost
Maryland counties to complainant's office; and (iii) there was a
reassignment of a subordinate employee.
With respect to issue (i), assuming arguendo that complainant has
presented a prima facie case, we find that the agency has presented
legitimate, non-discriminator reasons for its actions. The record
indicates that the complainant was investigated for allegations of
harassment within her office. The record indicates that internal
investigations into allegations of harassment were a normal agency
procedure. And while complainant objects to the "manner" in which the
investigation was conducted, the record indicates that the investigation
was conducted in compliance with agency guidelines as established under
the No FEAR Act and was initiated on legitimate bases, which concerned
allegations of harassment against complainant that were made prior to
complainant's initial November 1, 2007 EEO contact. Complainant herself
acknowledged that under agency policy, management was required to act
promptly in response to allegations of harassment. Therefore, we find the
agency has shown legitimate, non-discriminatory reasons for its actions,
which complainant has not shown were pretextual.
With regard to issue (ii), complainant contends that in reprisal for
her EEO activity, S1 increased her workload. However, we find that
complainant has failed to demonstrate reprisal. The record indicates
that the jurisdictional realignment was an operational decision which
was intended to improve the efficiency with which the NEA audits were
conducted. Further, the record shows that a year and a half prior to
complainant's first EEO activity, the agency had already established plans
regarding a jurisdictional realignment of the Washington, DC NEA program.
Therefore, complainant has not shown a causal nexus between this protected
activity and agency's actions. Finally, regardless of temporal proximity,
complainant failed to introduce persuasive evidence sufficient to raise
an inference that reprisal motivated the management officials' actions.
Accordingly, with respect to conduct alleged in issue (ii), we find that
complaint has not established a prima facie claim of retaliation.
With regard to issue (iii), the record shows that the agency's decision
to reassign the MD Division staff member was based on legitimate,
non-discriminatory factors. The record indicates that the impetus for the
reassignment began not from management but from the subordinate employee
herself, who had requested to be relocated away from complainant's MD
Division office. The subordinate employee was the individual who had
complained to management that complainant was harassing and discriminating
against her. In response, management reassigned the employee in order
to help prevent the escalation of an ensuing workplace conflict.
Complainant has presented no evidence indicating that the agency's
decision to relocate the subordinate employee was based a retaliatory
animus. Accordingly, complainant has failed to show the agency's reasons
for its actions were pretextual.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted. Accordingly, we AFFIRM the final
agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
_______11/19/09___________
Date
1 The Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002, Pub.L 116 Stat. 566, (2002) provides, in part,
that Federal agencies be accountable for violations of antidiscrimination
and whistleblower protection law.
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0120092408
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092408