Cynthia Clark, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 21, 2009
0120091080 (E.E.O.C. May. 21, 2009)

0120091080

05-21-2009

Cynthia Clark, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Cynthia Clark,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091080

Agency No. 200J-0553-2007-102847

Hearing No. 471-2008-00076X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 16, 2008 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), 42 U.S.C.� 200e .et seq.

On July 30, 2007, complainant, a WG-2 Housekeeping Aide in the

Environmental Services Section at the Department of Veterans Affairs,

Dingell VA Medical Center, Detroit, Michigan filed an EEO complaint.

Therein, complainant claimed that she was the victim of unlawful

employment discrimination on the bases of race (black) and in reprisal

for prior protected activity. Specifically, complainant claimed that

she was subjected to harassment/ hostile work environment when:

1. May 7, 2007, a co-worker called her "Nappy Head" and waved his hand

in her face;

2. On various occasions prior to May 7, 2007, her co-worker called her

"Voodoo Woman" when she wore a scarf around her head;

3. On May 29, 2007, complainant found her work cart had been sprayed

with Comet cleanser; and

4. On or about June 6, 2007, she discovered her co-worker asked an

employee if complainant and another co-worker were dating.

Following an investigation by the agency, complainant requested a

hearing before an Administrative Judge (AJ). The agency filed a Motion

for Summary Judgment or in the alternative, Motion for Decision Without

Hearing on the grounds that undisputed evidence shows that complainant

could not establish a prima facie case of a hostile work environment

based on her race or retaliation. Complainant failed to file a response

to the Motion for Summary Judgment. The AJ issued a decision without

a hearing, finding no discrimination. In its final action, the agency

implemented the AJ's decision.

Regarding the May 7, 2007 incident (claim (1)), the AJ found although

the employee who purportedly made the "Nappy Head" comment denied that

he did so, another employee claimed that he heard the comment being made,

and told complainant's supervisor. The AJ determined that, in any event,

the supervisor took corrective action by separating complainant and

the employee so that they worked on separate floors; gave complainant

a separate set of keys so she would not have to come into the office;

and told the employee to have no further contact with complainant.

Regarding the "Voodoo Head" comments (claim (2)), the AJ found that

complainant admitted that she never informed supervisors that the comment

was unwelcome; that she never told the employee to cease making this

comment; and that she never informed any management official about the

comment. The AJ noted that complainant's supervisor had no knowledge

of the comment prior to the investigation of the instant complaint.

Regarding the "Comet cleanser" incident (claim (3)), the AJ found that

upon investigation of the matter, complainant supervisor found that five

or six other carts were also sprayed with cleanser, and that an agency

employee acknowledge that she periodically sprayed carts at the end of

the night.

Regarding the "dating comment" incident (claim (4)), the AJ found that

even if this comment were made, there is nothing to show that it was

based on complainant's race, or in reprisal for prior protected activity.

The AJ found that the sole incident where there was any evidence,

albeit disputed, was the "Nappy Head" incident; and that assuming that

this comment was indeed made, the record reflects that complainant's

supervisor took corrective action. The AJ found that this single

incident could not be regarded as establishing a hostile work environment.

The AJ concluded that there were no genuine issues of material fact or

credibility presented, and that it was appropriate to issue a decision

without a hearing.

On appeal, complainant states that she never retained a representative

to conduct discovery on her behalf, and acknowledges that the deadline

to respond to an agency Motion for Summary Judgment had lapsed prior to

her seeking representation to prepare a response. Complainant argues

that she has no legal background and was unfamiliar with the discovery

documents she received from the AJ; and that there are no safeguards for

laypersons in situations where they lack a representative to guide them

through the administrative litigation process.

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, 322-323 (1986); Oliver v. Digital

Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is

"material" if it has the potential to affect the outcome of a case.

If a case can only be resolved by weighing conflicting evidence,

summary judgment is not appropriate. In the context of an administrative

proceeding, an AJ may properly consider summary judgment only upon a

determination that the record has been adequately developed for summary

disposition.

We have considered complainant's appellate statements on appeal. While we

are sympathetic to complainant's status as a layperson without counsel

during the discovery process, we nevertheless determine that there were

no improprieties in the AJ's issuance of a decision without a hearing.

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 (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

May 21, 2009

__________________

Date

2

0120090191

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091080