0120100217
07-13-2012
Lorie L. Johnson, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Lorie L. Johnson,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120100217
Hearing No. 570-2008-00671X
Agency No. NPS-07-0140
DECISION
On October 20, 2009, Complainant filed an appeal from the Agency's September 30, 2009, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 which found that Complainant failed to demonstrate that she was discriminated against as alleged.
ISSUE PRESENTED
The issue in this case is whether the Administrative Judge (AJ) correctly issued a decision without a hearing which found that Complainant failed to show that she was discriminated against.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-6 Secretary, at the Agency's George Washington Memorial facility in McLean, Virginia. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical and mental), and in reprisal for prior protected EEO activity and or sexual harassment when:
1. On May 23, 2006, her supervisor pushed her against her computer in an attempt to get her to do extra work assignments, and when on January 18, 2007, her supervisor poked her right shoulder:
2. As of March 9, 2007, her supervisor had not taken action in response to requests that her position description ("PD") be updated;
3. The Agency did not provide an accommodation after she submitted a request for accommodation and doctor's note on January 30, 2007, explaining that she required a more controlled working environment;
4. (a). On June 14, 2006, her supervisor yelled at her and delayed her in obtaining her National Park Service Identification, (b). On or around March 13 to March 31, 2006, her requests for training were delayed, not offered or approved by her supervisor, and (c). On June 13, 2006, her supervisor did not inform her of an overtime opportunity;
5. On or around June I5, 2007, she became aware that her supervisor and other employees did not inform her of changes in procedures;
6. On June 19, 2006, she was denied a transfer out of the office;
7. Her computer was not moved as requested; and
8. She was not provided with a Performance Evaluation from October 2006 to September 21, 2007.1
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 over Complainant's objections, issued a decision without a hearing on September 25, 2009. The AJ found that Complainant failed to show that she was discriminated against based on her sex, disability, or in reprisal for prior EEO activity and failed to show that she was subjected to sexual harassment. The AJ determined that Complainant's underlying claim was that she was not taken seriously at her workplace and was not valued.
The AJ in a lengthy decision found that assuming 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 issue no. 1, Complainant's supervisor's actions were not to harass or intimate her. The evidence showed that he tapped her shoulder to get her attention as he was standing behind her, and, he accidently bumped against her chair in order to look over her shoulder to see Complainant's computer screen as he was farsighted. He was not looking at her screen so that he could require her to do additional work. Further, once Complainant told her supervisor that she did not like to be touched he never repeated the action. Regarding issue no. 2, Complainant's PD was not updated because a new way to manage her work was established. Complainant wanted a new PD because she was being given work from many different employees. In response, Complainant's supervisor established a system which required employees to go through him instead of giving Complainant assignments directly. Therefore, her PD did not have to be changed.
With respect to issue no. 3, management explained that after Complainant requested an accommodation, she was asked to provide additional medical documentation regarding her disabilities as the medical documentation provided by Complainant only indicated that she suffered from stress and needed a more structured environment. The Agency explained that Complainant never provided any of the additional requested medical documentation and therefore she did not support her request for an accommodation.
With respect to issues 4, 5, and 6, the AJ found that Complainant failed to show that she was treated differently than other similarly situated employees. The AJ noted that while Complainant may not have liked the way the office was run, she did not show that the conduct at issue was related to her protected bases.
With respect to issue no. 7, management indicated that Complainant's computer was not moved right away because her request to move it simply indicated that she wanted the computer moved to better hide her monitor from coworkers. Regarding issue number eight, the record showed that no employee received a performance evaluation due to the supervisor's busy schedule. Management maintained that Complainant was not treated differently than any other employee.
The AJ determined that Complainant failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination or that any of these incidents were related to discriminatory animus. Further, the AJ found that Complainant failed to show that she was subjected to sexual harassment, because the record did not indicate that any of these claims were related to her sex. Accordingly, the AJ found that Complainant failed to show that she was subjected to discrimination as she alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she continues to be ignored and mistreated. She also restates issues that were previously addressed. Further, Complainant maintains that her supervisor discussed her medical condition at her desk were others could overhear.
In response, the Agency argues that Complainant has not provided any evidence which demonstrates that its articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency requests that its finding of no discrimination be affirmed.
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 both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ properly issued a decision without a hearing as there are no material facts at issue. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. We further find that Complainant failed to provide any evidence which suggests that discriminatory animus was involved with regard to these matters.2 She also failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination.
With regard to issue no. 3, we specifically note that as part of the interactive process, an employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13.
The Commission has recently held that:
If an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation.
Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012). In this case, we agree with the AJ that the record indicates that Complainant was responsible for the breakdown in the interactive process.
Finally, with regard to Complainant's contention on appeal that her private medical information was discussed at her desk, we advise her that she believes that she has been subjected to discrimination with regard to this matter - she should contact an EEO counselor.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's final order which found that Complainant failed to demonstrate that she was subjected to 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
_7/13/12_________________
Date
1 The AJ noted that claims 4, 6 and 7 were untimely, but accepted as part of Complainant's claim of a continuing violation regarding the terms and conditions of her employment.
2 We note that, in addressing an Administrative Judges'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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01-2010-0217
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100217