0120072572
07-01-2009
Debbie A. Cousins, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Debbie A. Cousins,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120072572
Hearing No. 100200500739X
Agency No. 200518818FRA02
DECISION
On May 10, 2007, complainant filed an appeal from the agency's April
20, 2007 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
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 an Administrative Specialist at the agency's Washington,
D.C. facility. The record reveals that complainant was the subject of an
Office of Inspector General (OIG) investigation after the OIG received
an anonymous call about preferential treatment afforded to complainant
by her supervisor, with whom she was allegedly having an inappropriate
relationship. This supervisor resigned in March 2004. Complainant filed
an EEO complaint in response to this investigation, which was dismissed
and not appealed. On May 18, 2004, an interim report detailing the
OIG's findings was released. The final report was released in July 2004.
On October 15, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of reprisal for prior EEO
activity when:
1. on June 8, 2004, she learned that she did not receive an Office
of Safety performance award;
2. on June 30, 2004, she learned that the employee who initiated
the OIG investigation would be returning to the office and would be
seated directly across from her;
3. on July 14, 2004, she was denied a promotion when the Acting
Associate Administrator of Safety informed her that the position for
which she had applied would be canceled.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned
to the case granted the agency's March 20, 2006 motion for a decision
without a hearing and issued a decision in favor of the agency without
a hearing on April 6, 2007.
In his decision, the AJ found that complainant was denied the performance
award after the Office of Human Resources forwarded the award to the Chief
Counsel because of the findings in the OIG Interim Report. The AJ found
that the Senior Attorney Advisor in the Office of Chief Counsel determined
the award should not be made because of the fact that complainant's former
supervisor had recommended it, and because of evidence that complainant
had lied to the OIG during the investigation. Although complainant argued
that her performance merited the award, the AJ found that complainant
failed to dispute the agency's reasons for its actions. Likewise, the
AJ found that complainant was denied the promotion for the same reasons,
and because of the fact that complainant's former supervisor had written
the position description, and some of the duties were not supported.
Moreover, the Office of Human Resources stated that they thought the
vacancy announcement should be cancelled until a replacement for the
supervisor was found, who could then assist in the selection process.
The AJ found no evidence of pretext.
Finally, complainant alleged she was subjected to a hostile work
environment when she was forced to sit across from the individual who
allegedly initiated the OIG investigation. The AJ found that, as a
matter of law, this allegation did not rise to the level of a hostile
work environment because it was neither severe nor pervasive.
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, complainant states there are disputes of material fact which
render the AJ's decision erroneous. Specifically, complainant states
that the OIG investigation ultimately determined that complainant
was not guilty of time and attendance fraud. Accordingly, this casts
doubt on the agency's purported reason for its actions. In response,
the agency contends that even if the OIG ultimately did not find that
complainant was guilty of fraud, the agency took the actions it did for
the appearance of impropriety, including complainant taking a trip to
Orlando, Florida with her supervisor and misuse of government equipment.
ANALYSIS AND FINDINGS
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).
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).
After a review of the record, we find the AJ was correct in issuing
a decision without a hearing as no dispute of material fact exists.
Complainant's primary argument is that the OIG ultimately found that
she did not commit time and attendance fraud, and therefore, there is a
dispute of material fact as to whether she was retaliated against when she
was denied the performance award, and when she was denied the promotion.
However, we find there is no dispute that, at the time, the agency was
operating under the findings of the interim report, which determined
that there was evidence to support that an inappropriate relationship
between complainant and her supervisor existed. Although the OIG
ultimately found no evidence of fraud on the part of complainant, agency
officials were, in fact, aware of the allegations against complainant,
as well as the suggestion of favoritism. Complainant did not dispute,
with evidence, that this was the agency's motive at the time, as opposed
to the fact that she had filed an EEO complaint. Further, the record
reveals that the agency decided to cancel the vacancy announcement until
the replacement supervisor was selected and could participate in the
selection process. Complainant failed to present evidence that this
was inconsistent with prior procedure, or was retaliatory in any way.
Finally, as for complainant's claim of harassment, we find complainant
failed to present sufficient evidence of severe or pervasive conduct
that would rise to the level of a hostile work environment.
CONCLUSION
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 action.
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
July 1, 2009
Date
2
0120072572
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120072572
7
0120072572