0120150357
04-17-2017
Janet B.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janet B.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150357
Hearing No. 520-2014-00267X
Agency No. 13-6604-00498
DECISION
On September 30, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 24, 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing which found that Complainant did not demonstrate that she was subjected to discrimination, reprisal, and/or harassment.
ISSUE PRESENTED
The issue presented in this case is whether the AJ properly issued a decision without a hearing finding that Complainant did not demonstrate that she was subjected to discrimination, reprisal or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, NT-04 at the Agency's Undersea Warfare Center, Comptroller Department, Budget and Program Division in Newport, Rhode Island. On December 14, 2012, Complainant filed an EEO complaint alleging that the Agency harassed her and discriminated against her on the bases of race (Filipino), national origin (Asian), color (Brown), age (49), and reprisal for prior protected EEO activity when:
A. On October 5, 2012, the Subject Matter Expert (SME) directed Complainant to change the language on the form, Work and Service/Direct Citation, from "de-obligated" to "pulled back."
B. On November 2, 2012, the SME forwarded to Complainant's supervisor, (S1), a chain of email communications Complainant exchanged with an employee from the Space & Naval Warfare Systems Command (SPAWAR) regarding de-obligation of funds, causing S1 to chastise her.
C. On November 8, 2012, the SME incorrectly corrected her (via email) for the timeframe she sent an email to SPAWAR regarding the status of a funding document, forwarding a copy to S1.
D. In November 2012, S1 directed her not to use "deobligated unliquidated obligation" in the log and asked her to correct all the prior times the terminology had been used in the log and to amend the log to read "pull back funds."
Complainant also alleged that she was subjected to harassment in the past but did not realize that it was harassment. Additionally, Complainant requested that another complaint that she had filed be consolidated with this complaint.
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 Administrative Judge. Complainant timely requested a hearing. The AJ notified the parties that she intended to issue a decision without a hearing and gave the parties an opportunity to respond to the notice. On April 5, 2014, Complainant filed an opposition to the notice. On April 7, 2014, the Agency submitted a combined brief in support of the notice and a motion in support of summary judgment in favor of the Agency. On August 1, 2014, the AJ issued an order entering judgment in favor of the Agency. The AJ found that Complainant did not demonstrate that she was aggrieved as she suffered no direct or personal deprivation at the hands of the employer. Notwithstanding, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not show that the reasons were pretext for discrimination. The AJ also found that Complainant did not demonstrate that the Agency's actions were sufficiently severe or pervasive to support an inference of harassment based on Complainant's race, color, national origin, age or in reprisal for having engaged in protected EEO activity.
Finally, the AJ denied Complainant's request for consolidation because the other complaint(s) were not at the same investigatory stage as the current complaint and although the same managers were involved, there was no other information supporting consolidation.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ did not consider the specific elements raised in her complaint. Specifically, she maintains that she is sure that the SME was aware of her prior EEO activity because she had previously filed a complaint against her husband and therefore it was reasonable to conclude that she was aware of Complainant's EEO activity. Complainant also contends that being instructed to change an accepted term that is used by financial management professionals to local slang (pull-back) was directed at her to demonstrate she did not fit-in with the rest of the staff because of her ethnic background.
Further, Complainant maintains that she was treated as a social outcast with coworkers and indicates that they distanced themselves from her. Complainant contends that the harassment was so severe that it interfered with her work performance.
In response, the Agency contends, among other things, that the AJ properly found that Complainant did not demonstrate that she was subjected to discrimination, reprisal or harassment. The Agency maintains that Complainant's assertions on appeal are simply her disagreeing with the AJ's decision. The Agency maintains that Complainant has not proven her case.
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).
Upon review, we find that all requirements for issuing a decision without a hearing have been met. We find that the AJ properly issued a decision without a hearing as there are no material facts at issue.
We also find that the AJ did not abuse her discretion in denying Complainant's request that the instant complaint be consolidated with other pending complaints as Complainant did not demonstrate that the complaints were like or related to the instant complaint or were at the same stage in the investigative process.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that with regard to instructing Complainant to use the term "pullback funds" management was simply continuing a long-standing business practice within the Outgoing Funding Staff. Complainant was ordered to use the term "pullback funds" to maintain consistency and ensure that everyone involved in the funding process, including people outside of the Outgoing Funding Staff, would recognize and understand the action being taken.
We find that Complainant did not present any evidence which suggests that discriminatory animus against her race, national origin, color, or age was involved in the decision to use the phrase "pullback funds" instead of more accepted accounting terms that she wanted used. We find that Complainant was chastised because she continued to try to correct management and staff regarding the use of the term she preferred even after she was instructed to use the term "pullback funds." We find that Complainant provided no evidence which suggested that the Agency's reasons were pretext for discrimination.
Further, regarding Complainant's allegation that she was subjected to reprisal, we find that even if we assume arguendo that management was aware of her prior EEO activity, there is no evidence linking her prior activity with management's actions. In fact, Complainant did not deny that everyone else used the term "pullback funds."
Finally, we find that Complainant has not shown that she was subjected to a hostile work environment. Although Complainant argues that she was isolated, and ostracized from her peers, we find no persuasive evidence that this was the either the result of management's actions or that it was due to discriminatory animus. For the most part, we find that the incidents complained of were normal work-related interactions concerning disagreements over how to conduct the business of the work place. As noted above, the record indicates that the use of the term "pullback funds" was not specific to Complainant but was a long-standing business practice that was used for consistency across offices. Finally, we find that all of the incidents at issue were not severe or pervasive enough to establish a hostile work environment.
Regarding Complainant's contentions on appeal, we find that other than her conclusory statements she has not provided any evidence which even remotely suggests that discrimination, reprisal, or a hostile work environment were at played a role.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order which found that Complainant did not demonstrate that she was subjected to discrimination, reprisal, or a hostile work environment.
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
_4/17/17_________________
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
0120150357
7
0120150357