0120141967
09-21-2016
Dortha G.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dortha G.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120141967
Hearing No. 460201300044X
Agency No. ATF201200172
DECISION
Complainant appealed the Agency's March 18, 2014 final order concerning her equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS-13 for the Agency's Dallas Field Division in Dallas, Texas.
On January 3, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when:
1. on September 29, 2011, she was issued a Letter of Caution; and
2. from March through September 2011, the Agency intentionally held an Internal Affairs investigation of Complainant in a "pending" status as a way to deny her job benefits and opportunities.
The Agency accepted allegation (1) for investigation, but dismissed allegation (2) for failure to state a claim.
At the conclusion of the investigation into the complaint, the Agency provided Complainant 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 motion for a decision without a hearing and issued a decision without a hearing on February 3, 2014.
In reaching his decision, the AJ found that the record developed during the investigation established the following undisputed facts.
Complainant was on approved leave visiting her sister in Washington, D.C. when, on January 7, 2011, they went to her sister's place of work, the Federal Energy Regulatory Commission ("FERC"). Upon entering the building, Complainant informed the desk security officer that she was an ATF Agent and provided him with identification. According to the Internal Affairs ("IA") Report of Investigation, on which Complainant's Memorandum of Caution was based, Complainant did not disclose whether she was carrying her weapon, even though the desk security officer asked multiple times, explaining that FERC and building protocol required them to notify the Security and Safety Office ("SAS") before allowing an armed officer to enter the building. The security officer stated in the Report that Complainant responded "unprofessionally" by telling him that ATF Officers are not required to go through security at airports and asking how he would know she was carrying "a piece." Then, without confirming whether she was carrying a weapon, Complainant placed her bag containing her Agency-issued firearm and badge on the x-ray machine. When the security officer monitoring the x-ray machine saw them, she informed Complainant that she would contact SAS upstairs and someone from the office would come speak with her before she could enter the rest of the building. Complainant took her bag off the machine and opted to wait outside for her sister. The security officers found the incident "strange" so they reported it to SAS.
The Director of FERC SAS contacted the Chief of the Agency's Personnel Security Safety Branch, who forwarded the matter to the Agency's IA Division. The Assistant Special Agent in Charge of IA initiated an investigation of the allegation. On March 16, 2011, Complainant was informed that she was the subject of an IA investigation. Upon its conclusion, the Office of Professional Responsibility and Security Operations ("OPRSO") reviewed the investigation and issued the above-referenced Report of Investigation on May 13, 2011.
All OPRSO reports of investigation are submitted to the Agency's Professional Review Board ("PRB"), which is comprised of several supervisors and managers within the Agency. The PRB Chair submits a recommendation for what disciplinary action (if any) the Agency should take based on the Report of Investigation to the Bureau Deciding Official, who renders a decision and, if necessary, implements disciplinary action. In the instant case, the PRB Chair, who was unaware of Complainant's protected classes, recommended no disciplinary action but that Complainant should receive a "caution" for her conduct, as it was described in the Report of Investigation. The Bureau Deciding Official adopted the Board's recommendation. The Memorandum of Caution and accompanying cover letter explained that "this memorandum is not considered a disciplinary action and will not be filed in [Complainant's] Personnel Folder."
Based on this evidence, the AJ found that Complainant failed to establish a prima facie case for discrimination and/or harassment based on Complainant's race, sex, and prior EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
Dismissal of Allegation (2)
As an initial matter, we note that the Agency initially dismissed Complainant's allegation (2), for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1), reasoning that because it concerned an IA investigation, accepting the matter for an EEO investigation would constitute a collateral attack on proceedings in another forum. The AJ affirmed the Agency's dismissal in her Order Regarding Accepted Issues, which she reiterated during the prehearing conference, and in her Summary Decision.
However, in its final decision, the Agency conceded that the AJ erred in affirming the dismissal of Complainant's claim that once the IA investigation of the FERC incident was completed in March 2011, Agency management intentionally kept the matter in "pending status" for months, and did not issue the letter of caution until September 2011, in order to deny her training and other employment opportunities. We agree that this allegation should not have been dismissed. However, because the events in allegation (2) are so intertwined with the allegation (1), we also agree that the evidence on this matter was adequately developed, and we will consider this allegation along with allegation (1) in determining whether Complainant has established discrimination or unlawful retaliation.
Summary Judgement for Agency
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, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for such disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). In the context of an administrative proceeding under Title VII, an AJ may only properly consider summary judgment after there has been adequate opportunity for development of the record.
On appeal, Complainant seems to argue that the AJ erred in issuing a decision by summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While complainant has, in a very general sense, asserted that facts are in dispute such as her questioning the credibility of Agency witnesses, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute and the need for a hearing.
To prove her claim of discriminatory/retaliatory harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Like the AJ, we find no evidence whatoever that the matters at issue occurred because of Complainant's race, sex or prior protected activity. It is undisputed that, as a result of the incident with security at FERC, Complainant's behavior was reported by FERC to Agency security, who followed routine practice and referred the matter for investigation. The results of that investigation led directly to the issuance of the letter of caution in September 2011. With regard to the length of time between the completion of the investigation in mid-March 2011 and the issuance of the letter of caution in September 2011, the evidence adequately shows the many steps in the bureaucratic process at issue that provides a non-discriminatory/retaliatory explanation for the length of time at issue. Moreover, Complainant has provided no evidence to support her argument on appeal, that the Agency creates "drop files" where supervisors retaliate against employees for EEO activity by adding confidential documentation, (here, the Memorandum of Caution), to employee personnel files in order for other supervisors to develop a bias against that employee. In sum, we conclude that Complainant failed to establish that the events at issue were motivated by her race, sex, or prior protected activity.
Finally, Complainant's argument on appeal appears to raise additional claims of discrimination. These matters are not at issue in the complaint before us, so they will not be adjudicated in this decision. For allegations regarding discriminatory acts by management (e.g. nonselection, proposed suspension), Complainant may, if she has not done so already, raise these claims in a separate complaint by contacting an EEO Counselor in accordance with our regulations in 29 C.F.R. � 1614.105. To the extent Complainant is alleging that the Agency EEO Counselor mishandled her complaint (e.g. failure to interview witnesses as part of the EEO investigation), our guidance provides that "a complainant must raise any dissatisfaction with the processing of his/her complaint before the Administrative Judge issues a decision on that complaint, the agency takes final action on the complaint, or either the Administrative Judge or the agency dismisses the complaint." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015).
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 21, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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