0120110395
03-18-2011
Kathy M. Bighem, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.
Kathy M. Bighem,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.
Appeal No. 0120110395
Hearing No. 550-2010-00154X
Agency No. 200P-0913-2009103780
DECISION
Complainant timely filed1 an appeal from the Agency's November 2, 2010,
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. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly issued
a decision without a hearing which found that Complainant had not been
discriminated against based on her race and age when she was issued
an admonishment, charged as Absent without Leave, and was subjected to
harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Cemetery Representative, GS-6, at the Agency's San Joaquin Valley
National Cemetery in Gustine, California. Complainant's first-level
supervisor is the Administrative Officer, GS-11, and her second-level
supervisor is the Cemetery Administrator, GS-12.
On August 19, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American)
and age (51) when:
1. on June 4, 2009, management charged her Absent Without Leave (AWOL);
2. on June 19, 2009, management issued her an admonishment;
3. she was subjected to unlawful harassment as follows:
(a) on January 11, 2008, the Cemetery Administrator (also referred to
herein as the Director) made a negative comment about her weight and
stated that he thought he would sign her up for Richard Simmons;
(b) on March 5, 2008, the Director made a sarcastic comment to Complainant
regarding whether her vehicle would make the trip in order for her to
attend a funeral;
(c) on May 12, 2008, the Administrative Officer asked a question in the
Director's presence whether anyone had ever heard of David Duke and then
stated that her new neighbors remarked that the neighborhood was good
because of the absence of African Americans;
(d) on August 25, 2008, the Director made a statement that with eight
more paychecks until Christmas, Complainant would need to start putting
gifts on layaway;
(e) on November 13, 2008, Complainant overheard inappropriate remarks
by staff regarding the report card of a dependent child that had been
faxed in hopes of submitting information towards burial eligibility;
(f) on June 4, 2009, management charged Complainant as Absent Without
Leave;
(g) on June 9, 2009, the Administrative Officer questioned Complainant
about a cemetery marker that was one character over the space allowed;
and
(h) on June 19, 2009, management issued Complainant a written
admonishment.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did
not warrant a hearing and issued a Notice of Intent to Issue a Decision
without a Hearing on July 14, 2010. Complainant submitted her response
to that Notice on July 27, 2010, and August 2, 2010. The Agency did not
reply to the AJ's Notice. The AJ issued a decision without a hearing
on September 28, 2010.
In her decision, the AJ found that when considering the issues of
Complainant's claim of harassment in the light most favorable to
Complainant, the incidents were not sufficiently severe or pervasive
such that they rose to the level of a hostile working environment.
The AJ found that these were a "few, relatively minor incidents occurring
over the span of 18 months." She also found that Complainant had not
shown how these incidents were motivated by any animus against her on
the bases of her race or age. Regarding Complainant's claim that she
was discriminatorily charged as AWOL, the AJ found that Complainant
had not shown that any other employees not of her protected class had
received more favorable treatment for the same offense. The AJ noted
that Complainant did not dispute that she left work early on June 4,
2009, prior to her submitted leave request being approved. Regarding
the written admonishment issued to Complainant on June 19, 2009, the AJ
likewise found that Complainant had not shown that the Agency's reasons
for issuing it were pretext for discrimination. The AJ concluded that
Complainant had not proven that she had been subjected to discrimination
or harassment based on her race or age.
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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her contentions on appeal, Complainant argued that the Cemetery
Administrator and the Administrative Officer have created a hostile work
environment based on their "micromanaging and monitoring." She noted
that two co-workers who were involved in a physical altercation were
treated differently with respect to the consequences, and that this
has also tainted the atmosphere in the office. Complainant also set
forth examples of what she believed were further incidents involving the
Cemetery Administrator that demonstrated that he was rude to employees and
to patrons of the cemetery, and that showed he harbored racial animus.
The Agency submitted a statement in which it urged the Commission to
affirm its final order.
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,
at 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").
ANALYSIS AND FINDINGS
Decision without a hearing
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);
Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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).
We find that the AJ properly issued a decision without a hearing as
there were no material facts in dispute such that the AJ would need to
resolve those disputes through the taking of evidence or observation
of witnesses. The AJ viewed the evidence in the record at the time of
her decision in the light most favorable to Complainant, and drew all
inferences in Complainant's favor.
Hostile work environment
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6
(Mar. 8, 1994).
Complainant listed eight incidents of harassment which occurred over an
18-month period. We find that she has established that she belonged
to protected classes, and that she considered these incidents to be
unwelcome. However, we also find that Complainant has failed to show
that these particular eight incidents had any connection to her race or
her age. The incident in claim 3(a) pertains to Complainant's physical
state, and the Cemetery Administrator's (apparent) view of Complainant.
The incident in claim 3(b) pertains to Complainant's car, and the
incident in 3(d) to her financial status. The incident in 3(c) regards
the Administrative Officer relating a story about her new neighbors,
and even by Complainant's version, the Administrative Officer did not
agree with the views of her new neighbors on African Americans. Even had
Complainant established a connection to her protected classes, she has
also failed to show that these incidents were so severe or pervasive
such that a legally sufficient hostile working environment was present.
While we acknowledge that Complainant's claims on appeal regarding
the behavior of the Cemetery Administrator indicate that he may not be
the most sensitive individual, the EEO laws are not a civility code,
and he does not seem to have confined his rude behavior to individuals
of Complainant's same race or age. See Oncale v. Sundowner Offshore
Services. Inc., 523 U.S. 75, 81 (1998) (EEO regulations are not a general
civility code or a requirement that the workplace be free of offensive
behavior).
Disparate treatment
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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was
discriminated against as alleged. Our independent review of the record
shows that, assuming Complainant had established her prima facie cases
of race and age discrimination, she has not shown that she was issued an
admonishment or charged as AWOL for discriminatory reasons. There is no
dispute that Complainant left work early on June 4, 2009, prior to her
submitted leave request being approved by the Administrative Officer.
Although Complainant had a large leave balance available to her for
use, she has not shown that the Administrative Officer charged her
AWOL because of her race or age. Likewise, Complainant does not deny
that the incidents listed in her admonishment occurred, but argues
that errors happen from time to time, and that she is generally a very
conscientious employee. Again, while Complainant may have shown that
the Agency's actions were not the most logical course of events, she
has not shown that they were discriminatory.
We find that the AJ's legal conclusions that Complainant was not
discriminated against based on race or age, and not subjected to a hostile
work environment, were properly drawn and are supported by the record.
CONCLUSION
Based on a thorough review of the record and the contentions of
Complainant on appeal, including those not specifically addressed herein,
and in the absence of contentions on appeal from the Agency, we AFFIRM the
agency's final order, which implemented the AJ's finding that Complainant
was not discriminated against as alleged.
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
March 18, 2011
Date
1 We note that Complainant initially filed her appeal prematurely, from
the Administrative Judge's decision. With the issuance of the Agency's
final, however, Complainant's appeal became ripe for adjudication.
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0120110395
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110395