01a05663
11-28-2000
Dawn Grail-Harris, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Dawn Grail-Harris v. Department of Veterans Affairs
01A05663
November 28, 2000
.
Dawn Grail-Harris,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05663
Agency No. 984712
Hearing No. 150-99-8649X
DECISION
Dawn Grail-Harris (complainant) timely initiated an appeal from the
agency's final order concerning her equal employment opportunity (EEO)
complaint of unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. <1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was subjected to reprisal due to prior EEO
activity when:
(1) she was harassed and subjected to a hostile work environment from
September 5, 1997 through February 1998;
she received a performance appraisal rating her work as unsatisfactory
on February 4, 1998; and
her employment was terminated on March 27, 1998.
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
The record reveals that complainant, a Staff Nurse in the Cardiac
Catheterization Laboratory at the agency's Gainesville, Florida facility,
filed a formal EEO complaint with the agency on May 4, 1998, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ first concluded that there was no genuine dispute as to the
material facts and that a decision without a hearing was therefore
appropriate. The AJ then noted that complainant established a prima
facie case of reprisal because she engaged in protected activity of
which the responsible management official was aware and was soon after
subjected to adverse treatment. In so finding, the AJ noted that
complainant consulted an EEO Counselor on September 5, 1997 and that
the actions at issue in this case began to occur immediately thereafter,
culminating in an unsatisfactory performance appraisal and her termination
a few months later.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
record supported the proposition that complainant's behavior did not
conform to the expectations of her supervisor (RMO) in the area of
interpersonal relationships, which accounted for 50% of complainant's
performance evaluation. The AJ also noted that complainant failed to
show that she was subjected to severe or pervasive working conditions,
as required to establish a claim of harassment. The AJ concluded
that complainant failed to establish that RMO's actions were motivated
by a retaliatory animus and noted that while RMO and complainant had
a serious personality conflict, there was no evidence that the RMO's
actions stemmed from complainant's EEO activity.
The agency's final order implemented the AJ's decision.
On appeal, complainant, through her attorney, makes three contentions.
She notes that after issuing a Notice of Intent to Issue Findings of Fact
and Conclusions of Law Without a Hearing (Notice) and granting the parties
fifteen (15) days to respond, as required, the AJ issued a decision prior
to the expiration of that time period. Complainant argues that she was
therefore denied her opportunity to be heard. Complainant next contends
that the AJ's Notice did not sufficiently advise her as to what legal
issues she should address because it did not indicate the particular
facts deemed to be undisputed. Finally, complainant argues that there
are material facts in dispute, although she does not indicate what these
disputed facts are.
In response, the agency notes that the AJ's failure to abide by the
required fifteen (15) day response period was harmless as the only showing
capable of defeating the AJ's decision to render a decision without a
hearing is that there is a dispute as to the issues of material fact.
The agency notes that complainant has made this argument on appeal.
The agency then argues that the AJ was under no obligation to explain
to complainant what she needed to argue to meet her burden of proof.
Finally, the agency notes that while complainant argues that there are
material facts in dispute, she fails to provide examples. The agency
asks that its final order be affirmed.<2>
FINDINGS AND ANALYSIS
Commission 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.
This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
judgment is proper when �material facts are not in genuine dispute.�
20 C.F.R. � 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc. 277 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. See Celotex v. Catrett,
477 U.S. 317, 322-323 (1986); EEOC MD-110, at 7-15, November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g). See EEOC MD-110, at 9-16.
In the case at hand, while complainant argues that there are material
facts in dispute, she does not describe any such disputes and after
a careful review of the record, we find that the AJ properly issued a
decision without a hearing, finding no discrimination. The AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In so finding, we note that complainant
failed to establish that she engaged in any EEO activity prior to her
initial contact with an EEO Counselor on September 5, 1997. The record
establishes that RMO informed complainant that her interpersonal skills
were unsatisfactory prior to the September 5, 1997 EEO activity and
that every action about which complainant complains stemmed from RMO's
pre-September 5, 1997 judgment that complainant's interpersonal skills
were unsatisfactory. It was due to this judgment that complainant
was placed on the allegedly harassing performance plan, received an
unsatisfactory performance appraisal, and was ultimately terminated.
Even assuming complainant is correct that no one other than RMO felt her
interpersonal skills were unsatisfactory, complainant failed to establish
that RMO's judgment or the actions RMO took due to that judgment, were
motivated by retaliatory animus.
As to complainant's allegations that she was denied an opportunity to
respond to the AJ's Notice, we find that the AJ did improperly issue
her decision prior to the expiration of the response time. However, we
find that this was harmless error, as complainant had the opportunity on
appeal to establish that there are material facts in dispute. Similarly,
we find that when notifying parties of the intent to issue a decision
without a hearing, an AJ has no responsibility to specify the facts he
or she believes to be undisputed.
Accordingly, we discern no basis to disturb the AJ's decision. After a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Commission received a letter from complainant on November 21,
2000, requesting that we strike the agency's response to her appeal due
to its untimeliness. We note, however, that the agency's response was
received on October 24, 2000. Complainant indicated in a certificate
of service attached to her appeal brief that the brief was served on the
agency on September 27, 2000. As the agency has 30 days from receipt of
complainant's appeal statement to file a response, the agency's October
24 response was timely. Although complainant also refers to a November
2, 2000 submission from the agency, the record does not contain any such
submission.