0120113035
08-22-2012
Joyce A. Turpin, Complainant, v. Gary Locke, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Joyce A. Turpin,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120113035
Hearing No. 531-2008-00088X
Agency No. 06-54-00231
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 5, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Secretary, GS-0318-7, at the Agency's Remote Sensing Division (RSD), National Geodetic Survey, National Oceanic &Atmospheric Administration (NOAA) in Silver Spring, Maryland.
On February 23, 2007, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (Native American and Caucasian), sex (female), color (mixed), age (over 40), and in reprisal for prior protected activity when:
1. despite being promised a promotion via accretion of duties since 2002, her accretion of duties promotion was approved, but was then cancelled in June 2005. Despite her accretion of duties promotion being cancelled, Complainant was still required to perform work at a higher grade level. As a result, Complainant requested a desk audit and on September 28, 2006, she learned the negative position classification audit results;
2. she was subjected to harassment by her supervisor when: (a) he tried to "get rid of her" by encouraging her to find another job and assisting her in finding a new detail or assignment; (b) warned her not to cause any problems so that his supervisor would not call him into his office and say 'Can't you keep that woman under control?"; (c) called her at home when she was out of the office due to illness; (d) in October 2006, he asked her in an aggressive tone "are you going to sue me?" He then repeated "I need to know if I am going to be sued;" and
3. on December 20, 2006, Complainant was issued a Leave Restriction Notice.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 29, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
In his decision, the AJ found no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, sex, color, age, and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the AJ found that the evidence in the record did not establish that Complainant was subjected to harassment based on race, sex, color, age, and retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, Complainant's supervisor (S1) stated that Complainant began asking him about promotion possibilities when he became Acting Chief of RSD in 2004. Specifically, S1 stated that Complainant "discussed with me her desire to move up and to be promoted to a higher grade and was very vocal about the series in which she was classified, her professed accretion of duties, and overall low moral." S1 stated that he was attentive to Complainant's concerns, but that he was never told by his predecessor that Complainant "had been previously promised a promotion through accretion of duties." S1 stated that during the relevant time, Complainant performed a wide variety of clerical and administrative assignments as Division Secretary in the RSD consistent with her position classification and performance plan.
Further, S1 stated that in November 2005, Complainant requested an audit of her position and "I supported her request and made the necessary inquiries to NOAA's Work Force Management Office (WFMO) on how to being the process. On or about November 29, 2005, I sent an official position classification audit request to WFMO. There were a number of delays in getting the audit scheduled which I cannot comment on since it is the responsibility of WFMO to independently perform the audit." S1 stated that on July 10, 2006, the audit began and was conducted by a classification specialist. S1 stated that the results of the classification audit confirmed that Complainant was performing duties consistent with her official position classification. Moreover, S1 stated "I have no reason to believe that the audit was not conducted by [classification specialist] in a fair and neutral fashion."
Complainant's former first level supervisor (former S1) stated "I have never personally promised [Complainant] a promotion. [Complainant] has expressed a desire to be promoted past her current position and grade since my arrival to NGS in 2003. To my knowledge, she has never been told to prepare promotion paperwork (past the GS-7 level) for herself to be submitted for signature." The former S1 stated that during the time he supervised Complainant, she performed duties in accordance with her position description and grade level.
Further, the former S1 stated that Complainant contacted him several times concerning her allegations that she was being subjected to harassment by S1. The former S1 stated that he looked into Complainant's allegations and "had no reason to believe that she was being harassed or mistreated. My impression was that [S1] had been trying to help [Complainant], encouraging her to look out for chances to advance at NOOA...the evidence showed that she was taking too much unplanned leave which was having an adverse effect on the Division."
The Director of National Geodetic Survey (D1) stated that Complainant approached him several times over the past few years about her desire to be promoted through a classification change and that he never promised her any type of promotion or directed any supervisor to promote her. D1 further stated that he told Complainant that she needed to work through her Division Chief with regard to her desire to move up. Moreover, SI stated that he informed Complainant to develop an Individual Development Plan (IDP) and use the IDP process to help her advance in NOAA. SI stated further that ". . . all four NGS Division secretaries that are federal employees have been unhappy over their inability to move forward in their current classification. Aware of this, I had a Leadership Coach come and talk to [Complainant] and the others in August 2006 about work related issues and opportunities for advancement at NOAA."
Regarding claim 2, S1 stated "I did not, in any form, harass [Complainant]. This includes her allegations that I tried to 'get rid of her' by encouraging her to find another job, and assisting her in finding a detail or new assignment." S1 stated that since Complainant was "very vocal" about the series in which she was classified, he tried to help her to pursue various training opportunities, develop an Individual Development Plan, and to pursue detail and rotational assignment programs that aligned with her interests.
S1 further stated that he did not warn Complainant not to cause any problems or tell her that his supervisor instructed him to "keep that woman under control." S1 stated, however, he recommended that Complainant "first approach me with any issues as her first line supervisor and then follow the chain of command rather than taking her issues directly to upper management as she had previously done." S1 stated that there were few occasions he attempted to contact Complainant at home "when she has not shown up for work or called in and requested sick or annual leave to me or my acting or when her prolonged absence has impacted the operations of the division and contact was necessary in order to gain access to administrative files. When I have attempted to contact her I have done so primarily out of concern for [Complainant's] well being but also to provide an opportunity for her to request sick or annual leave, if not prior approved, instead of being considered Absent without Leave (AWOL)."
D1 stated that he never told S1 to "keep that woman under control." Specifically, D1 stated "I never said these words. I was aware that [Complainant] was unhappy and it has been my impression that [S1] has wanted to help her. He knew that she was frustrated that her Secretary position went no higher in grade or responsibility and he encouraged her to keep her eyes out for opportunities for growth that might come up at NOAA."
Regarding claim 3, S1 stated that while he did not issue Complainant a Leave Restriction Notification, he issued her a Letter of Counseling on December 22, 2006 "that reiterated established leave procedures, noted her unscheduled leave pattern and the affect upon her performance and the mission of the organization. I previously verbally counseled [Complainant] regarding these same issues on September 25, 2006, October 2, 2006, and December 7, 2007; the written letter dated December 22 was only an extension of the previous verbal counseling." S1 further stated that Complainant was placed on notice that if she continued the same pattern of behavior, she would be placed under leave restrictions.
ANALYSIS AND FINDINGS
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant did not make any new contentions on appeal. We find that the AJ properly issued a decision without a hearing, finding no discrimination. We determine that Complainant has failed to identify any genuine issues of material fact that require resolution through a hearing in this matter. The evidence of record fully supports the AJ's determination that Complainant did not prove, by a preponderance of the evidence, that discrimination occurred.
Accordingly, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
August 22, 2012
__________________
Date
1 Complainant does not challenge the April 19, 2007 partial dismissal issued by the Agency concerning five other claims (that she was subjected to harassment and a hostile work environment on the bases of race, sex, color, age, and in reprisal for prior EEO activity when she was not selected for four positions; and the Agency violated the Fair Labor Standards Act for the last five years by requiring her to perform GS-12/13 level responsibilities despite only being compensated at the GS-7 level). Therefore, we have not addressed these issues in our decision.
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0120113035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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