0120090251
09-09-2011
Lori Sheppard, Complainant, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.
Lori Sheppard,
Complainant,
v.
Christopher J. Scolese,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 0120090251
Hearing No. 570-2007-00310X
Agency No. NCN-06-HQ-A034
DECISION
On October 15, 2008, Complainant filed an appeal from the Agency’s
September 30, 2008, 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 Equal Pay Act of 1963,
as amended, 29 U.S.C. § 206(d) et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing and (2) whether Complainant
established that she was subject to discrimination or harassment as
alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Space Planner Specialist, GS-1001-13 at the Agency’s Headquarters
in Washington, D.C. On June 16, 2006, Complainant filed an EEO complaint
alleging that the Agency subjected her to a hostile work environment on
the bases of race (African-American), sex (female) and in reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. she was continually subjected to threatening outbursts and
combative behavior by a contractor;
2. she was unfairly verbally reprimanded on May 26, 2006, for
reporting inappropriate behavior of a contractor;
3. she was excluded from meetings and discussions pertaining to a
contract and a project that was being directly managed by her;
4. she was unfairly criticized regarding her whereabouts during
the day and the use of her computer calendar to record her tasks and
reminders; and
5. she was unfairly deprived of proper credit for her contributions,
accomplishments and responsibilities, which were instead credited to
a co-worker.
Complainant also alleged that she was discriminated against on based
on her race (African-American), sex (female), and in retaliation for
protected EEO activity, when (6) she was not selected for the Space
Planner position, GS-100-14/14, advertised under Vacancy Announcement
No. HQ06C0148.
Finally, Complainant alleged that she discriminated against in violation
of the EPA based on her sex (female) when (7) she was paid less than
her male co-workers who were assigned similar duties
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 Agency filed a motion for a decision
without a hearing on September 11, 2007. Complainant filed a response.
The AJ assigned to the case determined that the complaint did not warrant
a hearing and over the Complainant's objections, issued a decision
without a hearing on September 5, 2008.
With regard to the hostile work environment claim, which comprised of
claims 1 – 5, the AJ found the following: concerning the allegation
that involves threatening outbursts and combative behavior by contractor
(C1), Complainant attested that on April 18, 2006, she inquired of C1
as to the status of a project, whereupon he ‘became very hostile and
threatening “toward her and “raised his voice (yelled) and turned
red.” Complainant testified that C1 stated he was “not responsible
for the project,” that he “was combative and threatening,” and
that he “proceeded to yell and slam things on his desk.” Complainant
attested that there was a “pattern and practice of this behavior from
[C1] to other minorities” in the office.
Concerning claim 2, the allegation that she was unfairly reprimanded
on May 26, 2006, for reporting C1’s inappropriate behavior, the AJ
found that Complainant testified that the Director of the Headquarters’
Facilities and Administration Services Division (Director) and a co-worker
(CW-1) “accused” her of feuding with C1 and advised her that it
needed to stop.
Concerning claim 3, the allegation that she was excluded from meetings
pertaining to a contract/project that she directly managed, the AJ found
that Complainant testified that on June 12, 2006, CW-1 was observed
meeting with an analyst whom Complainant had hired regarding a project
that she managed. Complainant also testified that on August 12, 2006,
she was “deliberately excluded from a meeting with the Associate
Administrator for Infrastructure and Management” that involved a
discussion and presentation of a project that she manages. The AJ
further found that Complainant stated that, although CW-1 had “no
professional knowledge of the subject” of the meeting, he nevertheless
asked Complainant to brief him on it, rather than having her conduct
the presentation or attend the meeting. Complainant also testified
that prior to filing her formal complaint of discrimination, she had
been asked to brief executive management on a regular basis regarding
the status of this project.
Concerning claim 4, the allegation that she was unfairly criticized
regarding her whereabouts during the day, the AJ found that Complainant
stated that the Director has surveyed her whereabouts since she
initiated her informal complaint in May 2006. Complainant testified
that a colleague informed her that CW-1 had similarly been surveying
her whereabouts. According to Complainant, the latest event occurred
on October 13, 2006, when CW-1 was “observed snooping around [her]
workstation while [she] was away from [her] desk.” In a related
allegation regarding the use of her computer calendar to record tasks and
reminders, the AJ found that Complainant testified that the Director
“indirectly implied” that she had been misusing the calendar
function when, at a staff meeting, he requested that the entire office
provide him access to their calendars. Complainant testified that
the Director indicated that appointments on the calendar should not
be marked “personal.” Complainant alleged that this directive was
targeted at her because she had been documenting events relating to her
discrimination complaint on her calendar and marking them “personal”
to block others’ access.
Concerning claim 5, the AJ found that Complainant stated that Director
had attempted to minimize her contributions and responsibilities by
attributing them to CW-1 in retaliation for her protected EEO activity.
The AJ found that with regard to Complainant’s harassment allegation
involving claims 1-5, that Complainant relied on her own broad allegations
in order to link C1’s alleged behavior to her race and the Director
and CW-1’s actions to her protected EEO activity. The AJ determined
that Complainant’s beliefs were not sufficient to raise genuine issues
of fact. Further, the AJ found that these incidents were not sufficiently
severe or pervasive to render Complainant’s work environment hostile.
The AJ found that, with the exception of the first allegation, that these
instances merely involve actions taken in the usual course of business.
With regard to Complainant’s nonselection claim, the AJ found that
the June 2006 Vacancy Announcement for the GS-14 Space Planner position
required one year of specialized experience equivalent to the next
lower grade. The AJ further determined that Complainant did not become
a Space Planner Specialist, GS-13, until March 3, 2006. Accordingly,
Complainant did not possess the requisite time-in-grade experience,
and therefore, was not qualified for the position. Therefore, the AJ
concluded that Complainant failed to establish a prima facie case of
discrimination and retaliation.
Finally, with regard to claim 7, the AJ found that Complainant stated
that her current and past professional experience were equivalent
to that of a GS-14 Space Planner and “in many cases exceeds the
requirements.” Specifically, Complainant set forth the reasons that
she believes she should have been selected for the GS-14 Space Planner
position. The AJ found, however, that Complainant has not shown that
the work CW-1 performed at the GS-14 level was equivalent to the work
she performed. In addition, Complainant stated that her predecessor
had been a GS-14; however, according to Complainant, her predecessor
was female. Accordingly, the AJ concluded that Complainant failed to
show that she was discriminated against in violation of the EPA.
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 makes no contentions on appeal.
ANALYSIS AND FINDINGS
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”).
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).
We find that, after a careful review of the record, the AJ appropriately
issued a decision without a hearing. The record reveals that ample
notice of the proposal to issue a decision without a hearing was given
to the parties; a comprehensive statement of the allegedly undisputed
material facts existed; the parties had the opportunity to respond to
such a statement, and the parties had the chance to engage in discovery
before responding.
Harassment
Harassment of an employee that would not occur but for the
employee’s race, color, sex, national origin, age, disability, or
religion 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)).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all of 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.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994) at 3, 6. Harassment is actionable only if the harassment
to which the employee has been subjected was sufficiently severe or
pervasive to alter the conditions of their employment. Cobb v. Dep’t
of the Treas., EEOC Request No. 05970077 (Mar. 13, 1997).
With regard to claims 1-5, we find that even assuming the incidents
occurred as alleged, Complainant failed to establish that the incidents
were sufficiently severe or pervasive to render her work environment
hostile. With regard to claim 1, we note that even though C1’s
conduct was unprofessional, Complainant alleged only one incident where
C1 behaved in this manner toward her. We find that this incident was
not sufficiently severe alone, or taken with the other incidents, to
render her work environment hostile. The Commission notes that EEO
laws are not a civility code. Rather, they forbid “only behavior
so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75,
81 (1998). In this case, we find that Complainant did not demonstrate
that her work environment was altered in such a manner that would warrant
a finding of harassment.
Nonselection
With regard to claim 6, in order to prove a claim of discrimination or
retaliation and in the absence of direct evidence of discrimination, the
allocations 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). First, Complainant must
establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. Id. at 802. Next, the Agency must articulate a
legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency
is successful, then Complainant must prove, by a preponderance of the
evidence, that the legitimate reason proffered by the Agency was pretext
for discrimination. Id. at 256.
To establish a prima facie case in a discriminatory nonselection claim,
Complainant must show: (1) she is a member of a protected group; (2)
she applied and was qualified for the position; (3) she was considered
for and denied the position; and (4) another person, not a member of her
protected group, was selected for the position. McDonnell Douglas Corp,
411 U.S. at 802-03. Generally, Complainant may also set forth evidence of
acts from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 557, 576
(1978).
The record clearly indicates that the June 2006, GS-14 Space Planner
vacancy announcement required one year of specialized experience
equivalent to the next lower grade. Further, the record reveals that
Complainant did not become a Space Planner Specialist, GS-13, until
March 3, 2006. Therefore, Complainant did not possess the requisite
time-in-grade experience to be qualified for the position. Accordingly,
Complainant failed to establish a prima facie case of discrimination or
retaliation with regard to this claim.
Equal Pay Act
To establish a violation of the EPA, Complainant must show that she
received less pay than an individual of the opposite sex for equal
work, requiring equal skill, effort and responsibility, under similar
working conditions within the same establishment. Corning Glass Works
v. Brennan, 417 U.S. 188, 195 (1974) at 195. Sheppard v. Equal Employment
Opportunity Comm., EEOC Appeal No. 01A02919 (September 12, 2000); see
also 29 C.F.R. § 1620.14(a).
The record reveals that Complainant alleged that her current and
past professional experience are equivalent to that of a GS-14 Space
Planner and “in many cases exceeds the requirements.” We note that
Complainant stated this in an attempt to prove that the Agency should
have hired her for the position at issue in claim 6. The AJ determined
that this stated a claim of sex-based pay discrimination. However,
the record is devoid of any evidence to substantiate Complainant’s
allegations that she performed this level of work.1 Further, Complainant
failed to demonstrate that she was receiving less pay than the Selectee
for equal work, requiring equal skill, effort and responsibility, under
similar working conditions within the same establishment. Accordingly,
we find that Complainant failed to establish that the Agency paid her
in a discriminatory manner based on her sex.
CONCLUSION
Based on a thorough review of the record, we find that the AJ
appropriately issued a decision without a hearing. Further, we find that
the AJ correctly determined that Complainant failed to demonstrate that
she was discriminated or retaliated against as alleged. The Commission
AFFIRMS the Agency’s final order adopting the AJ’s finding of no
discrimination.
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
__9/9/11________________
Date
1 We note that, in addressing an AJ’s issuance of a decision without
a hearing, a 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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0120090251
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090251