0120073639
04-09-2009
Gwendolyn M. Ashby, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Gwendolyn M. Ashby,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120073639
Hearing No. 570-2006-00396X
Agency Nos. DO-05-0181-F (05-2139),
DO-05-0601-F (05-2562)
DECISION
On August 19, 2007, complainant filed an appeal from the agency's July
20, 2007 final order concerning her equal employment opportunity (EEO)
complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Telephone Operator, GS-6, at the agency's Departmental Offices in
Washington, D.C..
On December 21, 2004, complainant filed an EEO complaint (complaint #1)
alleging that she was discriminated against and subjected to a hostile
working environment on the bases of sex (female), age (54), and in
reprisal for prior protected EEO activity when:
1. on April 16, 2004, she was assigned a new responsibility of
signing the "Daily Log" and spoken to in a demeaning manner when she
was given this assignment;
2. on April 16, 2004, she was unable to properly handle a bomb threat
because she had not been advised of the procedures for processing a call
of this nature;
3. between April 19 and 23, 2004, she was unable to secure assistance
to resolve computer problems so she could complete her work;
4. on or about May 13, 2004, her supervisor reprimanded her for
being late to work;
5. on or about May 13, 2004, she was denied job opportunities;
6. on or about May 13, 2004, she was issued a performance appraisal
for which she was rated tower than "Exceptional;" and
7. on August 27, 2004, she was accused of threatening a supervisor
in front of a coworker.
On August 23, 2005, complainant filed a second EEO complaint (complaint
#2) alleging that she was discriminated against and subjected to a
hostile working environment on the bases of sex (female), disability
(injuries sustained from an assault), age (55), and in reprisal for
prior protected EEO activity when:
8. from in or about February 2005 through in or about May 2005,
she was not allowed to perform her assigned duties;
9. from in or about February 2005 through in or about May 2005,
she received negative performance feedback;
10. from in or about February 2005 through in or about May 2005, she was
not allowed to update the daily log with her accurate work data and was
reprimanded for not signing the daily log;
11. from in or about February 2005 through in or about May 2005, she
was denied updated equipment;
12. from in or about February 2005 through in or about May 2005, she
was reprimanded for being late;
13. from in or about February 2005 through in or about May 2005, she
had to listen to vulgar language;
14. on or about September 6, 2005, she was requested to provide additional
medical documentation in order to receive approval for any absences
beyond September 16, 2005; and
15. on or about October 6, 2005, she was directed to report to work by
October 17, 2005, or provide acceptable medical documentation by October
14, 2005, and she was advised that her failure to comply would result
in Absent Without Leave (AWOL) charges.
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 on May 26, 2006. The agency submitted a motion
for a decision without a hearing on December 14, 2006, and complainant
submitted her response on December 29, 2006. The AJ issued a decision
without a hearing on July 19, 2007.
The AJ found that the case was appropriate for a decision without a
hearing, and that the record was adequately developed on which to issue
a decision. In her decision, the AJ found that complainant was a female
over the age of 40, who had previously served as an EEO Counselor for
the agency. The AJ also assumed, without finding, that complainant
was an "individual with a disability," and qualified for protection
under the Rehabilitation Act. Complainant therefore had satisfied the
first prong of a case of harassment, by showing that she was a member
of a protected group. The AJ found, however, that complainant had
not established that she had been subjected to conduct based on her
protected group status, and that she had not shown that the conduct was
sufficiently severe or pervasive such that it unreasonably interfered
with her work performance or that it created an intimidating, hostile
or offensive environment. The AJ reviewed each of the allegations of
complainant's two complaints and found that there was no evidence that the
agency had subjected complainant to treatment any different than that of
her co-workers, that it had applied rules and regulations regarding the
taking of leave in a manner that was not uniform, or that complainant's
performance evaluation had been motivated by one of her protected groups.
The AJ concluded that complainant had not established that she had been
discriminated against as alleged.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
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).
After a thorough review of the record, and of any arguments submitted by
the parties on appeal, we find that the AJ's decision without a hearing
was appropriate, as no genuine issue of material fact is in dispute.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July
11, 2003). We further find that the AJ's conclusion that complainant
has not shown that she was discriminated against based on her sex, age,
disability1 or in reprisal for previous EEO activity, and the agency's
implementation of that decision, was correct, and we AFFIRM the agency's
finding of no discrimination.
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
4-9-09
__________________
Date
1 We assume, for the purposes of analysis only, without finding such,
that complainant is an individual with a disability.
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0120073639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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