0120083334
10-30-2009
Gloria P. Erb, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Gloria P. Erb,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083334
Hearing No. 420-2008-00007X
Agency No. AAFES07039
DECISION
On July 19, 2008, complainant filed an appeal from the agency's June
20, 2008, 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the AJ properly issued a decision without a hearing finding that
complainant failed to establish that she was subjected to discrimination
concerning the challenged agency actions.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Accounting Assistant, Nonappropriated Funds (NF)-2,
at the Eglin Main Exchange, Store Number 0944100600, Eglin Air Force
Base (AFB), Florida. On February 20, 2007, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of race
(Asian-Pacific), national origin (Philippines) and color (brown), when:
(1) It was not until February 2007 that she was issued her Pay for
Performance Assessment (PPA) for Supervisors for the period July 2005
to July 2006;
(2) She was frequently being called at home with work related
questions, while off the clock; and not being compensated for staying
late and working off the clock due to alarm malfunctions; and
(3) Effective February 5, 2007, she was forced to resign (constructive
discharge) in order to avoid separation for cause.
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 January 7, 2008 motion for a decision
without a hearing and issued a decision without a hearing on May 30,
2008.
AJ Decision
The AJ addressed issue (1), the late appraisal, assuming initially
that complainant had suffered an adverse action. The AJ found that as
complainant identified a Black American who received her evaluation
in a timely manner, complainant established a prima facie case of
discrimination. The AJ further found that the agency articulated
a legitimate, nondiscriminatory reason for its action, namely, that
although complainant's evaluation was late, it was because complainant
was out on leave due to her daughter's pregnancy. The AJ found that
complainant presented no evidence of pretext.
As to issue (2), the AJ assumed that complainant was subjected to an
adverse action by frequently being called at home. The AJ then found
that complainant failed to establish a prima facie case of discrimination
as to the claim. However, the AJ found that complainant did establish
a prima facie case as to the claim that she worked overtime without
compensation, noting that complainant alleged that other supervisors in
similar positions were paid overtime when complainant was not. The AJ
further found that the agency articulated a legitimate, nondiscriminatory
reason for its actions, namely, the agency stated that no employee was
paid for brief calls made to their homes. As to the overtime work,
the agency stated that complainant was paid for overtime when her time
card required the payment. The AJ noted that complainant failed to
specify dates when she was allegedly denied payment for overtime worked.
Additionally, the agency asserted that complainant was paid for at least
some overtime. The AJ found that complainant presented no evidence of
pretext.
As to issue (3) involving alleged constructive discharge, the AJ
found that complainant did not show that an investigation was conducted
concerning alleged improper use of gift cards, for discriminatory reasons.
The AJ found that complainant and another individual who was found to be
responsible for improper use of gift cards were both permitted to resign
in lieu of termination. The AJ found that complainant did not show
that she was subjected to intolerable working conditions which violated
Title VII. The AJ found that no constructive discharge occurred.1 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 reiterates arguments previously made. She contends
that her rights have been violated (including being subjected to workplace
violence2, discriminatory harassment and denial of pay for overtime,
denial of training, and being denied the right to "formal mediation")
and asks for monetary compensation for the injustices she has endured.
The agency asks the Commission to affirm the final order.
ANALYSIS AND FINDINGS
Initially, we note that an agency has discretion whether or not to engage
with a complainant in voluntary mediation of a complaint. Accordingly,
we cannot conclude that the agency has acted improperly by failing to
engage in mediation in this instance.
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).
Here, we find that the AJ properly issued a decision without a hearing.
To prevail in a disparate treatment claim such as this, 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). Assuming complainant could
establish a prima facie case of discrimination as to claims (1) and (2),
the agency has articulated legitimate, nondiscriminatory reasons for its
actions as described above. The record contains no evidence that the
agency's reasons are most likely, pretexts for discriminatory animus.
As to issue (3) we note that a discriminatory constructive discharge
occurs when the employer, motivated by discriminatory animus, creates
working conditions that are so difficult, unpleasant, or intolerable that
a reasonable person in complainant's position would feel compelled to
resign. Doe v. Social Security Admin., EEOC Appeal No. 01A114791 (Feb. 21,
2003). In other words, the employee is essentially forced to resign
under circumstances where the resignation is tantamount to the employer's
termination or discharge of the employee. Kimzey v. Wal-Mart Stores,
Inc., 107 F.3d 568, 574 (8th Cir. 1997). The Commission has adopted a
three-pronged test for establishing a constructive discharge. Complainant
must show that: (1) a reasonable person in her position would have
found the working conditions intolerable; (2) conduct which constituted
prohibited discriminatory treatment created the intolerable working
conditions; and (3) complainant's involuntary resignation resulted from
the intolerable working conditions. Greer v. United States Postal Serv.,
EEOC Appeal Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor
v. Department of Defense, EEOC Request No. 05900630 (July 20, 1990)).
Here, complainant conceded that she had made a mistake concerning proper
use of gift cards, when she permitted employees to spend leftover money
on the cards. However, she insists that it was an innocent mistake
as she did not know that unused funds would be returned to the agency.
She contends that she has been punished for telling the truth. There is
no indication that the agency's decision, on or about December 12, 2006,
to investigate alleged abuse of gift cards, and then to allow complainant
to resign in lieu of being separated for cause based on the results of the
investigation, was motivated by discriminatory animus. Therefore, there
is no evidence in the record that complaint was subjected to intolerable
working conditions which arose out of conduct which constituted prohibited
discrimination on the basis of her race, color or national origin.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.3 See Petty. Therefore, we AFFIRM the
agency's final order.
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
______10/30/09____________
Date
1 The AJ noted that complainant also alleged that she was denied training
in 2006 and denied leave under the FMLA in June 2006, but noted that
these were not accepted issues, and more importantly, that complainant
was untimely because she did not seek EEO counseling within 45 days of
the challenged actions. On appeal, complainant does not specifically
dispute the findings that the claims were untimely. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9,
Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission has
the discretion to only review those issues specifically raised on appeal.
Accordingly, we will not address the dismissal of these issues in the
decision herein.
2 Workplace violence was not an issue in complainant's formal complaint.
Therefore, we shall not address it herein.
3 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120083334
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083334