0120160900
05-22-2018
Hyo E.,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hyo E.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160900
Hearing No. 450-2014-00010X
Agency No. 200305492013100540
DECISION
On December 31, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 25, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that she was subjected to a hostile work environment based on reprisal for prior EEO activity with regard to 10 incidents which formed the basis of her hostile work environment claim, including not being selected for the position of Lead Medical Supply Technician, GS-0622-06, Vacancy Announcement No. AH-12-DYR-672038.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply Technician, GS-6 at the Agency's VA Medical Center facility in Dallas, Texas. The AJ's decision thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On December 20, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment based on reprisal for prior protected EEO activity as evidenced by 10 separate incidents to include: non-selection for a Lead Medical Supply Technician positon, failing to collect a bereavement gift for her within the office, multiple charges of absent without leave (AWOL), issuance of a lower than expected performance rating, and others.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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 October 23, 2015. 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.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
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. Dep't of Def., 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 review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established prima facie cases of discrimination based on reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her claim, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. Moreover, the record reflects that Complainant was not "clearly more qualified" than the selectee. Management explained that the Selectee was a former manager of another facility, and had the experience, communication skills, and understanding of the work flow process to ensure efficiency. In contrast, Complainant's interview answers did not demonstrate that she was capable of advancing the department forward or fulfilling the responsibilities of lead technician.
With respect to Complainant's claim that no one collected money for her when she had a death in her family, but money was collected four times for other employees who had family deaths, the Commission agrees that the act of collecting money for a bereavement gift for a colleague is a voluntary act. There is no evidence in the record that management sponsored or facilitated any of the previous collections.
A review of the record supports the Agency's position that each time Complainant was charged with AWOL she was not in her work area, and had not called in to request the appropriate leave for the time she was not at work. Complainant's contention that she deserved a performance rating higher than "fully successful" as a result of all the work she did and the achievements she received is not supported by the facts in the record. The contention represents nothing more than Complainant's opinion, which is insufficient to refute management's contention that while Complainant met all the "minimum standards" to be fully successful, her work did not warrant an excellent rating.2
In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant's performance and conduct in the workplace. Nothing in the record, or submitted on appeal by Complainant, demonstrate that the actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. An abusive or hostile working environment exists "when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment." Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep't of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996).
An alteration to an employee's working conditions exists if a tangible, discrete employment action is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency's actions were sufficiently severe and/or pervasive to create a hostile work environment. The harasser's conduct is evaluated from the objective viewpoint of a reasonable person in a complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
The Agency concluded that Complainant failed to establish a claim of harassment because she failed to show that that she was subjected to severe or pervasive treatment such as to create an unlawful work environment on any basis. Instead, the incidents complained of here appear to have been reasonable actions of Complainant's supervisor and other management officials taken in the course of discharging their supervisory responsibilities. The incidents identified were in the nature of common interactions and employment actions that would occur between a supervisor and a subordinate employee in the workplace. We agree with the AJ's determination that the incidents, considered together and taken as a whole, did not rise to the level of a discriminatorily hostile workplace.
CONCLUSION
Based on a thorough review of the record, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate she was subject to discrimination as articulated above in the statement of Issues Presented. The Agency's final order adopting the AJ's decision therefore is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_5/22/18_________________
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.
2 We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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