Debby McAtee, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 27, 2007
0120070638 (E.E.O.C. Jul. 27, 2007)

0120070638

07-27-2007

Debby McAtee, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Debby McAtee,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120070638

Hearing No. 370-2006-00054X

Agency No. ARCEALAS04AUG016

DECISION

On October 30, 2006, complainant filed an appeal from an EEOC

Administrative Judge's (AJ) decision 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 and decided

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission affirms the AJ's finding of no discrimination.

At the time of events giving rise to this complaint, complainant worked

as a permanent seasonal Park Ranger, GS-0025-09, with the U.S. Army

Corps of Engineers, Alaska District, Chena Flood Project, Construction

Operations Division. Complainant filed an EEO complaint claiming that

she was discriminated against and subjected to harassment on the basis of

sex (female) when, from approximately June 15, 2004, through October 31,

2004, she was allegedly subjected to different terms and conditions of

employment than a male coworker. Specifically, (1) on July 4, 2004, her

supervisor (S-1) did not allow her to represent the Chena Flood Control

Project or otherwise participate in the North Pole Fourth of July Parade;

(2) on August 14, 2004, S-1 left a note for her in one of the gates which

asked her to remove an item and report to him after she completed her

patrol; (3) on August 14, 2004, S-1 refused her request for one hour of

compensatory time; and (4) on October 18, 2004, S-1 allegedly subjected

her to unlawful reprisal by refusing to submit her name as a volunteer

to assist in the District hurricane disaster response mission, and after

she told him that she was going to file an EEO complaint against him,

he responded, "that there sealed your fate?"

Complainant also claimed that, from June 13, 2003, through June 1,

2004, S-1 engaged in a range of activities that she believed created

a hostile work environment. For example, he refused to allow her to

work a half hour past her shift to make up for the half hour she was

late at the beginning of the shift, and required her to use leave; he

refused to approve her request to switch days off such that she might

have a three day weekend; and he required her to strictly comply with

a standardized patrol route. On January 31, 2005, the agency dismissed

said claim, consisting of 13 incidents, as untimely, but stated that the

incidents would be used as background evidence for her claim of hostile

work environment. 29 C.F.R. � 1614.107(a)(2). Complainant also sought to

amend her complaint to include a claim of reprisal when, on October 18,

2004, S-1 made derogatory remarks about her work performance to a Corps

of Engineers employee. The agency dismissed this claim for failure to

state a claim. 29 C.F.R. � 1614.107(a)(1).

At the conclusion of the investigation of the accepted claims, 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. The AJ assigned to the case

determined sua sponte that the complaint did not warrant a hearing and

over the complainant's objections, issued a decision without a hearing

on August 1, 2006.

At the outset, the AJ determined that the agency appropriately dismissed

complainant's claim of hostile work environment from June 13, 2003,

through June 1, 2004, and her claim of reprisal on October 18, 2004.

The AJ then found that complainant failed to establish a prima facie case

of sex discrimination or in reprisal. She, however, assumed arguendo that

complainant established such a case, but determined that S-1 articulated

legitimate nondiscriminatory reasons for his actions. Specifically,

(1) for staffing reasons, complainant was needed to perform her regular

duties, and she had previously displayed a disruptive attitude by

challenging every managerial decision with which she did not agree; (2)

S-1 had reason to believe that complainant was not performing her full

duties as expected, when, for example, her car mileage was incorrect,

and he could not locate her; (3) S-1 never granted compensatory time

when advance approval had been given; and (4) S-1 needed complainant in

the office until October 20, 2004 because her coworker (CW) was out of

the office until that date. The AJ further determined that complainant

failed to show that the agency's reasons were pretext for discrimination.

With respect to complainant's claim of hostile work environment, the AJ

found that the agency's actions were insufficiently severe or pervasive

to constitute a hostile work environment claim.

When the agency failed to issue a final order within forty days of receipt

of the AJ's decision, the AJ's decision, finding that complainant failed

to prove that she was subjected to discrimination as alleged, became

the agency's final action pursuant to 29 C.F.R. � 1614.109(i).

Complainant filed the present appeal. In her statement on appeal,

she contends that the agency erroneously dismissed her claim of hostile

work environment from June 13, 2003, through June 1, 2004, and reprisal

on October 18, 2004, because her case is one of continuing violation.

She further asserts that the AJ's failure to allow her to amend her

case resulted in its fragmentation. With respect to the merits of her

claims, she asserts that the AJ accepted as true S-1's assertions,

and she notes that no one questioned her performance prior to her

filing an EEO complaint. Complainant then requests that the Commission

include numerous incidents of alleged discrimination, spanning from 2002

through 2005.

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. 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").

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's decision referenced the appropriate regulations, policies, and

laws. Furthermore, we find that the AJ's affirmance of the agency's

dismissal of identified claims was correct. In her statement on appeal,

complainant asserts that her claim of hostile work environment from June

13, 2003, through June 1, 2004, is timely, and that to find otherwise

fragments her claim. We note, however, that the AJ specifically found

that all incidents occurring before June 1, 2004 were discrete acts.

See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (June 10,

2002)(a plaintiff alleging a hostile work environment will not be time

barred if all acts constituting the claim are part of the same unlawful

practice and at least one act falls within the filing period. However,

"discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.").

The AJ nonetheless analyzed them as part of complainant's claim of

hostile work environment. We find that, inasmuch as those claims were

considered as part of complainant's claim of hostile work environment,

they were properly considered. We further agree with the AJ's assessment

that complainant's claim regarding S-1's derogatory remarks about her

work performance to a Corps of Engineers employee fails to state a claim

of reprisal. 29 C.F.R. � 1614.107(a)(1). Specifically, we note that

S-1's actions do not constitute the type of activity that is reasonably

likely to deter complainant or others from engaging in protected activity.

EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998); Burlington

Northern and Santa Fe Railway Co. v. White, 548 U.S.____, 126 S.Ct. 2405

(2006)(finding that the anti-retaliation provision protects individuals

from a retaliatory action that a reasonable person would have found

"materially adverse," which in the retaliation context means that

the action might have deterred a reasonable person from opposing

discrimination or participating in the EEOC charge process). Complainant

also requests that the Commission include numerous newly identified

incidents of alleged discrimination, spanning from 2002 through 2005.

Complainant, however, must first raise all her claims with the agency, and

it does not appear that these new identified incidents, occurring between

2002 and 2005 were previously raised as part of the present complaint.

Therefore, it is inappropriate for her to raise these new claims for the

first time as part of the current appeal. See Hubbard v. Department of

Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004).

With respect to the merits of her claims, complainant asserts that the

AJ accepted as true S-1's assertions. She, however, fails to provide a

specific example of a genuine issue of material fact, and she concedes

that she engaged in some of the behaviors identified by S-1, such as

shortening her route. With respect to claim (4), we note that, while

S-1's alleged comment to complainant regarding her intent to file an

EEO complaint was inappropriate, we do not find that it was the type of

activity that is reasonably likely to deter her or others from engaging in

protected activity. Burlington Northern, supra. We therefore find that

the AJ properly issued a decision without a hearing because complainant

has failed to show that a genuine issue of material fact exists.

For the foregoing reason, we concur with the AJ's determination, and

hereby affirm the AJ's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

___7/27/07________________

Date

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0120070638

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070638