0120111042
09-13-2012
Deborah M. Moreno, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Deborah M. Moreno,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111042
Hearing No. 420-2009-00144X
Agency No. 200L-0520-2008-104201
DECISION
Complainant timely filed an appeal from the Agency's October 21, 2010, 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 a decision without a hearing and whether the AJ properly found that Complainant failed to prove that she was subjected to a hostile work environment because of her prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11 Occupational Therapist at the Agency's Physical Medicine and Rehabilitation Service in Biloxi, Mississippi. Complainant has held this position since 2006 and has been an employee with the Agency for over 14 years.
On September 16, 2010, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to a hostile work environment in reprisal for prior protected EEO activity under Title VII when:
1. On February 29, 2008, Complainant did not receive her critical elements from her supervisor (S1);
2. On April 1, 2008, S1 implied that she was the individual that reported a co-worker for being late, further causing a division among the staff;
3. On May 6, 2008, S1 sent an email to all staff under her supervision, except Complainant, informing them that a class on Stroke Continuum was to be held on June 13, 2008;
4. On May 29, 2008, S1 excluded her from an Occupational Therapy meeting;
5. On June 24, 2008, S1 made her take an hour of leave;
6. On June 24, 2008, S1 spoke to her in a loud and sharp tone of voice in front of co-workers and company representatives regarding the release of information forms for the representative; and
7. From the date of the filing her previous informal EEO complaint on January 4, 2008, through July 15, 2008, S1 had not chosen Complainant to be charge in S1's absence.
The AJ's 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 December 24, 2009, the Agency submitted a motion for a decision without a hearing, to which Complainant responded in objection on January 22, 2010.
The AJ issued a decision without a hearing on September 16, 2010, in which he found that Complainant failed to prove that the Agency subjected her to retaliatory harassment. Specifically, the AJ made several findings of fact, including the finding that the critical elements at issue in this case were given to Complainant in October 2007, but Complainant objected to some of the elements. The AJ further found that, in light of Complainant's objections, S1 rewrote the critical elements, which were not completed until March 2008. The AJ noted that S1's statements about the critical elements were corroborated by S1's supervisor (S2), who stated that Complainant was provided the critical elements in a timely manner, but the delay was caused because the Agency had to rewrite them after Complainant did not agree with them and would not sign them.
Regarding claim 2, the AJ noted that Complainant stated that when S1 called the office to speak to the Staff Occupational Therapist, Complainant told S1 that the Staff Occupational Therapist was not in the office yet and offered to take a message. The AJ noted that the Staff Occupational Therapist stated that she was running late and was told by S1 that Complainant reported that she was tardy for work.
Regarding claim 3, the AJ noted that Complainant stated that she received the email concerning the June 2008 conference that S1 sent to other employees from the Chief of Physical Therapy on May 5, 2008, and Complainant acknowledged that she attended the conference. The AJ further noted that S1 stated that Complainant received the original email from the Chief of Physical Therapy, and she forwarded the email to staff members that were not included in the original email.
Regarding claim 4, the AJ recounted that Complainant contended that on May 29, 2008, S1 excluded her from an Occupational Therapy meeting, but S1 denied that the meeting on May 29, 2008, was an Occupational Therapy meeting. The AJ noted that S1 stated that she held meetings with an Occupational Therapist each Thursday for mentoring. The AJ further noted that the Occupational Therapist stated that S1 requested weekly meetings with her, and there was no scheduled or planned agenda for the meetings.
With respect to claim 5, Complainant stated that she called in to report that she was running late for work on June 24, 2008, and reported to work approximately 42 minutes late. Complainant stated that S1 instructed her to request one hour of leave, instead of 45 minutes. The AJ noted that S1 stated that the policy is for employees to report in person to her when they are late, but Complainant did not do this and failed to explain why she did not do so. S1 stated that she asked Complainant to redo her leave request for one hour, which Complainant refused to do. The AJ further noted that S1 stated that Complainant went to S2, who excused Complainant from having to request one hour of leave.
Regarding claim 6, Complainant alleged that, on June 24, 2008, S1 spoke to her in a loud and sharp tone in front of co-workers and company representatives regarding the release of information forms for representatives. The AJ noted that S1 stated that Complainant failed to follow standard Agency procedures concerning the scheduling of representatives to come to campus, and S1 reiterated the procedures in front of the representatives and another therapist so that everyone could learn from the experience. The AJ further noted that the other therapist present stated that the situation was tense between S1 and Complainant, but the therapist did not observe any unprofessional behavior by either individual, and no one yelled.
Regarding claim 7, Complainant alleged that, since she filed her previous EEO complaint, S1 had not chosen her to be in charge when S1 was absent from work. The AJ noted that S1 stated that there have been only three incidents during the time in question in which she left employees in charge, and the three staff therapists shared responsibilities equally when she was absent. The AJ further noted that S2 stated that it was rare for S1 to leave anyone as the acting supervisor when she was absent.
The AJ concluded that Complainant could not establish a prima facie case of retaliatory harassment because she did not present any evidence that any of the alleged conduct was premised upon discriminatory animus against her because of her prior EEO activity. The AJ further concluded that Complainant failed to prove that any of the alleged actions were so severe or pervasive that they created a hostile work environment. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when he found that she did not prove that she was subjected to retaliatory harassment. Specifically, Complainant argues that she established a prima facie case of retaliation because the alleged actions are reasonably likely to deter employees from engaging in EEO activity. Complainant contends that she was the only employee who received critical elements late; the Agency has not provided a copy of the policy that requires employees to report to management in person when they are late for work; and Complainant has only served once as acting supervisor during S1's absence since she engaged in EEO activity. Complainant further argues that there is a nexus between her EEO activity and the alleged harassment because her prior EEO activity occurred in close temporal proximity to the Agency's actions. The Agency requests that we affirm its final decision.
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").
ANALYSIS AND FINDINGS
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). 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 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.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
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 intimidating, hostile, or offensive work environment; and (5) mere is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
After a thorough review of the record, we find that Complainant failed to establish a prima facie case of harassment because she did not provide any evidence that would establish that any of the Agency's actions were motivated by her prior EEO activity. Moreover, even if the alleged actions could be considered as deterring a reasonable person from pursuing the EEO process, we still find that Complainant has not persuasively rebutted the Agency's legitimate, nondiscriminatory reasons for its actions or shown in any way that they were motivated by retaliation. While the record strongly suggests that Complainant and S1 had a contentious work relationship, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Accordingly, we find that the AJ properly found that Complainant failed to provide any evidence from which it could be reasonably concluded that the Agency subjected her to retaliatory harassment.
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 order.
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
September 13, 2012
Date
2
0120111042
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111042