0120080822
07-21-2009
Denise Roberts, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Denise Roberts,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080822
Hearing No. 430-2007-00101X
Agency No. DON 06-69235-01024
DECISION
Complainant filed an appeal with this Commission from the November 16,
2007 agency decision which implemented the October 12, 2007 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
In her amended complaint, complainant alleged 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. Specifically, complainant alleged
that the agency discriminated against her based on reprisal when: (1)
from February 22, 2006, the agency engaged in continuing reprisal; (2)
she did not receive a performance award; and (3) she was not allowed
to act in the Comptroller position.1 Complainant identified several
alleged incidents of continuing reprisal relating to claim (1):
a. Since April 5, 2006, complainant was not allowed access to her
computer files and hard copy files.
b. On April 5, 2006, the Chief of Staff notified complainant that
she would be detailed to unassigned duties.
c. On April 4, 2006, complainant was notified she would be subjected
to a command inquiry.
d. On April 4, 2006, complainant was directed by the Comptroller2
to copy the Comptroller on all of her electronic mail correspondence,
although other grade level GS-14s were not directed to do so.
e. On April 4, 2006, complainant was directed by the Comptroller
not to work beyond normal working hours before advising the Comptroller
first, although previously it was the norm for complainant to prioritize
her own workload and provide a reason for working beyond normal working
hours at a later time.
f. On March 28, 2006, complainant was notified via electronic mail
by the Comptroller that she was not allowed to discuss any issues with
her subordinate staff until after the Comptroller met with complainant
on April 3, 2006.
g. On March 28, 2006, the Comptroller participated in a meeting
with complainant's subordinate staff before advising complainant that
the meeting was taking place.
h. On March 13, 2006, the Comptroller pulled complainant from a
Budget Conference, and then later told complainant that she was not
needed.
i. On March 9, 2006, the Comptroller issued Complainant a Letter
of Caution for disrespecting authority, revoked the letter, but then
threatened to use the letter again.
j. During and after the week beginning March 6, 2006, the Comptroller
made negative remarks about complainant in the presence of complainant's
subordinate staff.
k. During the week of March 6, 2006, the Comptroller denied
complainant the opportunity to assist the U.S. Fleet Forces Command
(COMUSFLTFORCOM) in preparing the Mid-Year Review Package for presentation
to Financial Management and Budget (FMB).
1. During the week of March 6, 2006, the Comptroller introduced
complainant as a Budget Analyst during a high-level meeting at
COMUSFLTFORCOM rather than by her appropriate title of Budget and
Accounting Officer, and this action was demeaning to complainant.
m. During and after the week of February 27, 2006, the Comptroller
would give complainant a job assignment and then take it away after
complainant had prepared for the assignment.
n. On June 8, 2006, complainant was issued a Letter of Reprimand,
dated June 7, 2006, for inappropriate conduct, although this was
complainant's first offense.
Complainant was provided with a copy of the Report of Investigation.
The agency also conducted a fact finding conference at which complainant
and several witnesses were questioned by the investigator, the agency's
representative, and complainant's counsel. Complainant requested a
hearing before an AJ. Over the objection of complainant, the AJ issued
a decision without a hearing (summary judgment).
In her decision finding no discrimination, the AJ determined that
complainant did not engage in any EEO activity until April 7, 2006,
and that, therefore, any incidents occurring prior to April 7, 2006,
could not have been the subject of reprisal. The AJ noted that when
complainant contacted the Command EEO Compliance Officer in February
2006, she had not done so in the context of alleging discrimination,
but that she had made the contact simply regarding her inability to get
along with the Comptroller.
The AJ agreed with the agency's dismissal of claim (2) on the grounds
that complainant failed to contact an EEO Counselor in a timely manner
pursuant to 29 C.F.R. � 1614.105(a)(1). The AJ noted that in a May 31,
2007 supplement to the record, the agency provided a copy of its dismissal
of the claim concerning the performance award. The AJ further noted that
the agency indicated that the performance award in question was for the
rating period ending July 31, 2006, and that all awards had been issued
to employees in complainant's directorate no later than September 15,
2006, a fact of which complainant should have been well aware. The AJ
also noted that complainant has not submitted any response to the agency's
May 31, 2007 supplement.
Regarding claim (3), the AJ found that complainant's behavior in the
workplace and her blatant disrespect for the Comptroller, as evidenced in
an internal investigative report, were legitimate and nondiscriminatory
reasons for her not being allowed to act in the Comptroller's absence.
The AJ also noted that complainant had failed to establish with any
particularity when and how frequently she was not allowed to act in
the absence of the Comptroller and, further, that she did not raise the
matter with the Comptroller or the Deputy Comptroller.
Regarding claims (2) and (3), the AJ noted that complainant failed to
mention in her motion to amend the complaint that she had filed a formal
complaint on these two claims.
On appeal, complainant acknowledged that the facts were as set forth in
the AJ's decision. She asserts, however, that because a genuine dispute
exists as to the credibility of witnesses, summary judgment was not
appropriate. Complainant also asserts that the AJ erred in finding that
her contact with the Command EEO Compliance Officer did not constitute
EEO activity, contending that the AJ viewed what constitutes EEO activity
too narrowly because complainant's decision to bring the Command EEO
Compliance Officer into the discussion was sufficient to constitute
EEO activity. Complainant asserts that the denial of the performance
award was an example of retaliation. Complainant argues that in her
answers to interrogatories, she had provided precise dates when she
was not permitted to act as the Comptroller. Complainant also argues
that there were factual disputes in the record regarding complainant's
allegations of incidents of retaliation.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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 the AJ 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,
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration., EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas Corp,
411 U.S. at 802. Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the AJ's grant of summary judgment
was proper because there exists no genuine issues of material fact. The
mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir. 1990)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48).
The record indicates that there appeared to be tension in the relationship
between complainant and the Comptroller and overall tension in the office.
The record also reveals that both complainant and the Comptroller
were individuals who had expressed frustration toward each other
which was observed by other staff. The record reveals that deadlines
contributed to the degree of stress in what appeared to be a fast-paced
and deadline-driven environment. The newest members of the staff under the
supervision of complainant had complaints about complainant's demanding
management style and they made a complaint concerning what they described
as a hostile work environment.
Even assuming that when complainant contacted the Command EEO Compliance
Officer in February 2006, she was engaging in protected EEO activity and
that the discriminating officials knew of this contact, the preponderance
of the evidence does not support a finding of retaliatory animus.
The record reveals that prior to complainant's contact with the Command
EEO Compliance Officer in February 2006, the Comptroller had sought
advice from a Human Resources Specialist in November 2005, concerning
issues between her and complainant. Moreover, the agency has also
articulated legitimate, nondiscriminatory reasons for the actions in
which it engaged and complainant has failed to show that the articulated
reasons were pretext for reprisal.
Regarding incident (a), the record reveals that complainant was denied
access to files because she had been detailed into another position and
did not need access to the files to which she was denied access.
Regarding incidents (b) and (c), the record reveals that complainant was
subjected to an agency investigative inquiry because of complaints from
her subordinate staff and that she was detailed because of management's
concern that she might retaliate against her subordinates who alleged
that she had subjected them to a hostile work environment.
Regarding incident (d), the record reveals that the Comptroller directed
complainant to carbon copy her on electronic mail because the Comptroller
was responsible for all financial management for the command and needed
to be aware of items requiring action. The Comptroller stated that she
requested that complainant copy her because there was an action due on
a day when complainant was on leave and the deadline was missed because
complainant's staff was not familiar with the action which had come in
only to complainant and when complainant replied she did not copy her
staff with the information. The record also reveals that the Comptroller
had made similar requests of other staff.
Regarding incident (e), the record reveals that it was policy for overtime
or compensatory time to be approved by the Comptroller prior to it being
worked so that employees would not be working without compensation and
that the Comptroller had made similar requests of other staff.
Regarding incidents (f) and (g), the record reveals that Human Resources
notified the Comptroller that four employees had a complaint against
complainant and informed the Comptroller that it was her responsibility to
sit down with the employees to determine what the problem was. The record
further reveals that the Comptroller notified each employee to meet with
her and that she did not inform complainant of the meeting because she
had been informed that the employees requested that complainant not be
present because they feared reprisal from complainant.
Regarding incident (h), the record reveals that complainant and Employee
A were both at the Budget conference, and the Comptroller needed data
from the two of them for a report which was needed by early afternoon
and they were the two whose expertise was needed. The Comptroller stated
that she only pulled complainant from the conference so that continuity
would be maintained at the conference and that she spoke to Employee A
over the telephone during the conference.
Regarding incident (i), the Comptroller stated that prior to the
issuance of the letter of caution, complainant had a discussion with
complainant and complainant lost her temper, threw her briefcase, picked
up her purse and slammed it on the desk and told the Comptroller, when
she asked complainant to leave the premises, that she would leave when
she was darn good and ready and not because the Comptroller asked her
to but because she wanted to leave. The Comptroller stated that she
consulted with Captain A of the Judge Advocate General's (JAG) staff and
he informed her that she had to ensure that complainant knew that they
were not willing to allow such behavior to continue. The Comptroller
also stated in the fact finding conference that the display of behavior
by complainant was not new and that she had been working with the Human
Resources Specialist in the Human Resources Office since November 2005,
regarding locating behavioral or confrontational training for complainant.
The Comptroller further stated that on February 24, 2006, she called the
Human Resources Specialist and she assisted her in preparing the letter.
The Comptroller also stated that the last incident was frightening
to her.
Regarding incident (j), the Comptroller stated that she did make the
comment about having to return to work because they worked for complainant
but that the comment was made in a joking way at a going away luncheon,
that everyone was laughing, and that the comment was not made in a
derogatory manner. She indicated that she was not aware of any other
time that she would have said anything that would have been interpreted
by complainant as negative.
Regarding incident (k), the Comptroller stated that she discussed
the matter with the Fleet Forces Command Budget officer who informed
her that because of the pace of the event, training was not possible.
She also stated that she and complainant's supervisor agreed that the
activity was not a good training venue because it required two days of
attendance and overtime.
Regarding incident (l), the Comptroller had no recollection of the
introduction and stated that if she did so she was extending an
apology.3
Regarding incident (m), the record reveals that the brief was to have
been presented by the Comptroller but she was on travel to Fort Meade.
The Comptroller stated that she talked to complainant the evening
before the briefing and because complainant stated that she was not
comfortable presenting the brief, the Comptroller arranged to return
home late that evening in order to present the brief and, also, that
complainant commented in front of other employees that she was glad
that the Comptroller came back early to give the briefing because she
was not prepared.
Regarding claim (n), the record reveals that the Chief of Staff issued
complainant a letter of reprimand for inappropriate conduct as a result
of the internal investigation regarding complaints of a hostile work
environment made by complainant's subordinates.
Regarding the denial of a performance award, claim (2), we agree with
the AJ that complainant failed to contact an EEO Counselor within the
requisite 45 days. At the latest, complainant should have reasonably
suspected discrimination in September 2006. The Commission finds that
this is a discrete act. Complainant failed to contact an EEO Counselor
regarding claim (2) in this complaint until November 28, 2006. Therefore,
claim (2) is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Regarding claim (3), not being allowed to act as Comptroller, the record
does not support a finding that the Comptroller did so for retaliatory
reasons. While in answers to interrogatories, complainant did identify
dates when other employees were acting, complainant has provided no
evidence that she had been asked to act in the Comptroller's absence
prior to the February 2006 incident. There is also no evidence that there
was a policy or system regarding rotation in the Comptroller's absence.
Further, there is no evidence that the Comptroller had any relationship
problems with the employees whom she chose to act in her absence.
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for the actions in which it engaged. A finding
that one explanation by an agency for a personnel action is invalid
does not mandate a finding that the act was discriminatory; all the
agency's proffered reasons must be examined. See Sims v. Cleland, 813
F.2d 790, 793 (6th Cir. 1987); Pollan v. United States Postal Service,
EEOC Request No. 05891093 (January 19, 1990). Moreover, it is not
sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." St. Mary's
Honor Center v. Hicks, 509 U.S. at 519; see also George v. United States
Postal Service, EEOC Appeal No. 01A31214 (July 28, 2003); Branson v. Price
River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988) (mere conjecture that
an employer's explanation is a pretext for intentional discrimination
is an insufficient basis for denial of summary judgment).
Construing the evidence in the light most favorable to complainant,
complainant has failed to show by a preponderance of the evidence
that the agency's reasons were pretext for prohibited discrimination.
An employer may take an action against an employee "for a good reason,
a bad reason, a reason based on erroneous facts, or for no reason
at all, as long as its action is not for a discriminatory reason."
Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th
Cir.1984)(concerning a termination). At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
The Commission finds no material facts in dispute and that the issuance
of a decision without a hearing was appropriate.
CONCLUSION
The agency's decision is AFFIRMED.
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 21, 2009
__________________
Date
1 The AJ granted complainant's motion to amend her complaint to include
claims 2 and 3, noting in her decision that there was no objection raised
by the agency.
2 The record reveals that complainant's first level supervisor was the
Deputy Comptroller but that the Comptroller functioned as complainant's
first level supervisor because the Deputy Comptroller was located
off-site.
3 The Commission notes that incident (l), standing alone, fails to state
a claim upon which a remedy can be granted.
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0120080822
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013