0120140588
11-07-2016
Leticia W.,1 Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Stennis Space Center), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leticia W.,1
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Stennis Space Center),
Agency.
Appeal No. 0120140588
Hearing No. 420-2012-00186X
Agency No. NCN-11-NSSC-071
DECISION
On December 3, 2013, Complainant filed an appeal from the Agency's October 29, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, we AFFIRM the Agency's final order.
ISSUES PRESENTED
The issues presented herein are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to issue a decision without a hearing was proper; and (2) whether Complainant established by preponderant evidence that she was harassed based on race.
BACKGROUND
During the period at issue, Complainant worked as a Financial Management Specialist in the Travel Branch of the Agency's Employee Services and Financial Accounting in the Stennis Space Center located in Hancock County, Mississippi. On December 8, 2011, she filed an EEO complaint alleging a hostile work environment on the basis of race (African-American) when, on September 9, 2011, her trainer/co-worker (C1) hit her on the back of the head; and on September 13, 2011, during a follow-up meeting with Complainant's supervisor regarding the September 9, 2011 incident, C1 mimicked Complainant's reaction to the event in a racially offensive, mocking manner. The Agency accepted the complaint for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge. Complainant requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to the AJ.
On July 16, 2013, the Agency filed a motion with the AJ requesting a decision without a hearing. In a decision dated September 18, 2013, the AJ granted the Agency's motion and found that Complainant did not establish discrimination as alleged. The Agency subsequently issued a final order adopting in full the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency engaged in a pattern or practice of creating a hostile work environment by interfering with her ability to take restroom and lunch breaks on August 31, 2011, and September 1, 2011, respectively. She further contends no Caucasian employees were required to seek advance "permission" to use the restroom or take lunch, or report to C1 following their lunch break or use of the restroom. See Complainant's Brief at 2
Complainant also contends that the Agency continued to subject her to a hostile work environment when C1 spread rumors regarding her alleged poor performance. Id. at 4. She also contends that on or about November 2011, and continuing until March 2012, employees stopped speaking to her in C1's presence for no apparent reason. Finally, Complainant alleged that she was subjected to other examples of poor treatment from C1 as well as other employees, which she blames on what they were told by C1. Id. at 5-9.
For its part, the Agency contends that it took immediate action regarding the alleged hostile work environment once it was put on notice by Complainant and requests that we affirm its adoption of the AJ's decision.
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 or reject 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
At the outset, we note that the new allegations of harassment raised by Complainant on appeal concerning C1 were not brought to the attention of an EEO Counselor (for inclusion in the underlying complaint) or an EEO Investigator (for amendment or consolidation), and therefore constitute newly raised issues. See EEO Counselor's Report. Therefore, they will not be addressed in this decision; however, Complainant, if she wishes to proceed with these matters should contact an EEO Counselor.
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond.2 Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (Mar. 8, 1994).
In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would not find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or bad 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
The record reflects that when the EEO Investigator asked Complainant why she believed the "hitting" incident was based on race, Complainant stated, "I do [not] think the hitting incident was necessarily racially motivated." See Complainant's Affidavit (Aff.) at 40. The record further reflects that when the EEO Investigator questioned Complainant's witness (W1), a Black female, about the hitting incident, W1 stated that a Computer Center employee asked who would be handling a particular travel issue, and C1 responded by stating "that would be you, my love" while tapping Complainant lightly on the head with her fingers. See W1's Aff. at 2. W1 further stated that the tap was so gentle that Complainant's hair remained in place. Id. Finally, W1 stated that when Complainant objected to the touching, C1 immediately apologized and stated that she did not mean to offend anyone. Id.
The record also reflects that during the Agency's investigation of the "hitting" event, Complainant stated that C1 recalled Complainant's objection by mocking Complainant's reaction in a racially derogatory manner. Specifically, Complainant stated that C1 said. "Don't you put yo (sic) hands on me" while waiving her finger back and forth, rolling her neck, and smacking her lips. See Complainant's Aff. at 8. C1 denied that such racial mocking ever took place. See ROI, Ex. 9 at 4. The Agency management official to whom the matter was reported, namely, the Chief, Financial Accounting (Chief), stated that she did not recall C1 recounting the event in a mocking and racially insensitive manner when she questioned C1 about the incident. See ROI, Ex. 12 at 4.
Notwithstanding C1's and the Chief's affidavits and accepting as true Complainant's version of these events as we must do considering this matter comes to us on summary judgment, we find that such conduct is not severe or pervasive enough to create an objectively hostile work environment that rises to the level of a Title VII violation. Here, the Commission notes that unless the conduct is severe, a single incident or group of isolated incidents will not be regarded as a claim of discriminatory harassment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Even so, to the extent Complainant may have established the first four elements of a hostile work environment claim, we find she has not established the fifth element, that is, a basis exists upon which to impute liability to the Agency as the record indicates that the Agency diligently investigated the matter and issued disciplinary action where appropriate. The evidence of record shows C1 was admonished for the incident by having a disciplinary memorandum placed in her file for a period of four years. See ROI, Ex. 17. Further, the Agency took action designed to ensure the behavior did not recur as the record shows that the Chief removed C1 as Complainant's trainer and directed her not to have further contact with Complainant. See ROI, Ex 15 at 2. Also, Complainant was ultimately transferred at her request from the Travel Division to the Accounts Receivables Division. See ROI, Ex. 15 at 1.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a decision without a hearing was proper. We further find that Complainant did not establish by preponderant evidence that she was harassed based on race. Accordingly, the Agency's final order is hereby AFFIRMED.
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
__11/7/16________________
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 The record reflects that Complainant submitted a response to the Agency's request for a decision without a hearing on August 8, 2013.
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