0120123317
07-18-2014
Complainant v. Jacob J. Lew, Secretary, Department of the Treasury (U.S. Mint), Agency.
Complainant
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.
Appeal No. 0120123317
Hearing No. 530-2008-00094X
Agency No. MINT-06-0824-F
DECISION
Complainant timely filed an appeal from the Agency's July 31, 2012, 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 are whether the EEOC Administrative Judge (AJ) properly issued summary judgment in favor of the Agency, and whether the AJ properly found that Complainant failed to prove that she was subjected to unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Buffer and Polisher in the Agency's Die Manufacturing Division in Philadelphia, Pennsylvania. Complainant initially worked on the first shift.
On August 4, 2006, Complainant conversed with the Senior Polisher in the office break room. A coworker (C1) was also in the break room conversing with another employee. According to Complainant, C1 interrupted her conversation with the Senior Polisher and said, "Oh, Uh! Excuse me, [Senior Polisher]; tell your wife I said hi!" Complainant and C1 then engaged in a verbal altercation.
On August 10, 2006, Complainant reported the incident to management and requested an investigation of the incident. Meanwhile, C1 complained to management that Complainant and the Senior Polisher had subjected her to a hostile work environment because of their inappropriate romantic relationship and conduct in the office.
A Human Resources investigator conducted an inquiry by interviewing 13 employees. On or about August 25, 2006, Complainant was informed that she and C1 would be separated from each other during the investigation. On, August 28, 2006, Complainant's second-level supervisor (S2) informed her that she would be temporarily assigned to the third shift.
The investigator issued a report on the matter on September 13, 2006. The report concluded that witnesses confirmed C1's allegations that Complainant and the Senior Polisher created an uncomfortable and hostile work environment for employees. The report also concluded that it was evident that Complainant "aggressively pursues" the Senior Polisher and serves as the instigator in the conflict between her and C1. The investigator reported that there was ongoing hostility between Complainant and C1, and employees were concerned that there could be a physical altercation if management did not take action to correct the problem. The investigator also reported that an employee stated that Complainant provoked people, had a nasty disposition toward coworkers, frequently went over to the Senior Polisher's desk, and had waterfall rocks on her desk that depicted her name with the Senior Polisher's name. The investigator further reported that witnesses confirmed that they had observed Complainant and C1 fondle and kiss each other in the work area.
The investigation contained a statement from C1. C1 reported that after she told the Senior Polisher to tell his wife hello, Complainant stated, "For a bitch who don't [sic] speak to me, she is in our business; she has a mental disorder." C1 also reported that she observed Complainant and the Senior Polisher kissing at work on a daily basis. The investigation also contained Complainant's version of the facts. Complainant reported that, during the altercation, C1 approached her in the break room, towered over her, and said, "If you got something to say to me, say it to my face, and not to [Senior Polisher]." Complainant also maintained that she has only a professional relationship with the Senior Polisher and never engaged in any inappropriate behavior at work.
The investigator concluded that because of Complainant's close romantic relationship with the Senior Polisher, Complainant should be permanently separated from the Senior Polisher. The investigator further recommended that the Agency immediately separate Complainant from C1 because the tension between the two could escalate into violence. The investigator also recommended that management issue Complainant and the Senior Polisher a letter of reprimand for engaging in unprofessional conduct in the workplace, and that the letter should also reference Complainant's confrontation with C1. The investigator further recommended that the Agency issue C1 a letter of warning for her confrontation with Complainant. After the investigation, the Agency permanently reassigned Complainant to the third shift, denied her request to return to the first shift, and issued her a letter of reprimand.
On October 16, 2006, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity. The Agency characterized Complainant's complaint as alleging the following:
1. On August 5, 2006, Complainant's managers failed to investigate Complainant's allegations of harassment by a C1, but instead investigated Complainant;
2. On or about August 28, 2006, the Agency ordered Complainant to temporarily report to the third shift;
3. On or about September 18, 2006, Complainant was permanently reassigned to the third shift;
4. On or about September 27, 2006, the Agency denied Complainant's request to return her to the first shift; and
5. On or about October 24, 2006, the Agency issued Complainant a letter of reprimand.
In an investigative statement, Complainant asserted that the Agency mischaracterized her complaint in the above claims 2 through 4. Complainant stated that, instead, she was alleging that: 2) the Agency conducted an investigation into her alleged personal relationship with another employee; 3) unfairly reassigned her to the third shift; and 4) unfairly refused to honor her request to return to the first shift.
Complainant further stated that she previously engaged in EEO activity when, a few months before August 2006, she complained about discriminatory hiring practices for the position of Buffer and Polisher. Complainant stated that she believed that her EEO involvement was "highly visible," that and management, including her second-level supervisor (S2) was aware of her EEO activity.
Complainant maintained that management ignored and failed to investigate her complaint that a coworker (C1) harassed her on August 4, 2006. Complainant stated that C1 instigated the incident in the break room. Regarding claim 2, Complainant stated that the investigation of her relationship with the Senior Polisher was designed to encourage gossip and rumors in order to discredit her character. Complainant stated that the investigation contained allegations from C1 concerning her alleged inappropriate conduct in the workplace with the Senior Polisher. Complainant stated that the investigation into her harassment claim was a "joke and a sham," and that the Agency had no intention of conducting a legitimate investigation into her claims.
Regarding claim 3, Complainant stated that her reassignment to the third shift was discriminatory because the Senior Polisher was not reassigned to the third shift. Complainant stated that she did not receive any training on the third shift and was afraid that her skills as a Buffer and Polisher would deteriorate. Regarding claim 4, Complainant stated that she had never worked the third shift and never wanted to work the third shift. Complainant stated that management offered to return her to the first shift if she agreed to a reassignment to a position with a far less promising potential career path. Regarding claim 5, Complainant stated that she received a letter of reprimand based on the report and findings and recommendations of the investigator. Complainant stated that the investigation was lopsided and designed to conclude that she is the problem in the workplace and needed to be reassigned to the third shift.
S2 stated that Complainant and C1 informed him of the incident in the break room, and that he verbally counseled Complainant and C1 about the incident on the morning of August 5, 2006. S2 stated that he believed that verbal counseling was the appropriate management response to the incident because he believed that the counseling would "nip the problem in the bud." S2 stated that, during the counseling, he told both parties that their behavior was unacceptable, but that Complainant felt insulted by his counseling. S2 also stated that he immediately separated Complainant and C1 following the incident and set up a meeting with Complainant and the union in response to the incident.
S2 stated that management began an investigation into the incident because of C1's claim that she was subjected to harassment. S2 further stated that he made the determination that Complainant had to be moved to a different branch because she had the least amount of seniority. He stated that he tried to find Complainant other, comparable positions on the first and second shifts and even offered her comparable positions in other branches, but Complainant chose to remain in her branch and to work on the third shift. S2 stated that, although he was sensitive to Complainant's subsequent request to return the first shift, he could not return her to that shift.
S2 stated that Complainant was reprimanded because the investigation indicated that Complainant was the aggressor or instigator in the incident. S2 stated that C1 received a verbal reprimand because she played a smaller role in the incident.
A coworker (C2) stated that he observed the August 4, 2006, incident between Complainant and C1. C2 stated that he heard C1 ask the Senior Polisher about his wife, and Complainant mumbled "Bitch" to C1. C2 further stated that C1 then said that if Complainant had anything to say to her, she should just say it. He further stated that he had observed Complainant and the Senior Polisher kissing in the office, and that employees have complained about their conduct to management.
The Senior Polisher reported that, during the break room incident, C1 approached Complainant and stated, "I can't stand you, I hate your guts." The Senior Polisher also reported that Complainant was calm and C1 was hostile during the incident. The Senior Polisher maintained that he did not have a personal relationship with Complainant and did not kiss her in the workplace.
Final Agency Decision
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 AJ. Complainant timely requested a hearing. On April 2, 2008, the Agency moved for summary judgment in its favor, to which Complainant responded in objection on April 21, 2008. On July 23, 2012, the AJ issued summary judgment in favor of the Agency. Specifically, the AJ found that Complainant failed to provide any evidence that would establish that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings. Complainant does not raise any arguments on appeal; the Agency requests that we affirm its final order.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 Chap. 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").
Decision without a Hearing
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. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, 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 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to 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 her 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 environment, 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).
For purposes of analysis, and without so finding, we assume arguendo that Complainant established a prima facie of discrimination on all alleged bases. Nevertheless, we find that the Agency provided legitimate, non-discriminatory explanations for its actions. Specifically, management stated that, after it received reports of the August 4, 2006, incident from C1 and Complainant, S2 met with Complainant and the union and both parties were counseled. The Agency also stated that it conducted an investigation into Complainant and the Senior Polisher's conduct because C1 reported that she frequently observed Complainant and the Senior Polisher engaging in inappropriate sexual and romantic behavior in the workplace.
The Agency further stated that, during the investigation, someone had to be moved to a different section because Complainant and C1 needed to be separated, and Complainant was moved because she had the least amount of seniority. Management stated that it initially planned to move Complainant to a different section on the first shift, but that Complainant agreed to move to the third shift instead of moving to a different section. S2 stated that, although he was sensitive to Complainant's subsequent request to return the first shift, he could not return her to that shift under the circumstances.
Management also stated that the investigator interviewed multiple witnesses, including Complainant and C1. Management stated that Complainant and the Senior Polisher received letters of reprimand because the investigation concluded that they had engaged in inappropriate romantic behavior in the workplace.
Upon review, we note that the Agency's explanations were extensively corroborated by witness statements and documentation. Moreover, we note that C1 is also an African American female and previously engaged in EEO activity, which undermines Complainant's assertion that the Agency's actions with respect to the altercation were based on her race, sex, or EEO activity. Additionally, it is undisputed that Complainant had less seniority than C1, and that this was the basis on which the Agency determined that Complainant should be moved to a different section or shift.
Although Complainant contends that the investigation was flawed and biased, the record contains ample evidence to support its conclusions and recommendations. Moreover, the Agency's actions were consistent with its duty to promptly investigate and correct inappropriate conduct in the workplace. As such, Complainant has not provided any evidence from which it reasonably can be concluded that the Agency's non-discriminatory explanations for its actions are pretext for unlawful discrimination.
Likewise, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we find that the AJ properly found that Complainant did not prove that the Agency subjected her to unlawful discrimination or harassment.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this decision.
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
July 18, 2014
Date
2
0120123317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123317