Gloria P. Erb, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 30, 2009
0120083334 (E.E.O.C. Oct. 30, 2009)

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