0120080702
05-25-2012
Marianne Smith, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Marianne Smith,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120080702
Hearing No. 550-2007-00082X
Agency No. DOT-06-04-6034
DECISION
Complainant timely filed an appeal from the Agency's September 24, 2007, 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, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and whether the AJ properly found that Complainant did not establish that she was subjected to a hostile work environment because of her sex and prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist/Certified Professional Controller at the Northern California Terminal Radar Control Center (TRACON). Complainant has held this position since 1996 and been employed by the Agency since September 1982.
On April 23, 2004, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior protected EEO activity when:
1. On December 13, 2003, a supervisor (S1) would not acknowledge Complainant's Familiarization Flight (FAM) request;
2. On December 13, 2003, Complainant was questioned about why she arrived early for work;
3. On December 19, 2003, a co-worker (C1) insinuated that Complainant was denied holiday pay;
4. On December 20, 2003, the Agency denied Complainant's FAM request;
5. On January 6, 2004, a male controller did not take a break when Complainant offered but took break when a male controller offered;
6. On an unspecified date, S1 parked his car too close to Complainant's car, which blocked her from exiting her car. S1 laughed about the situation, which encouraged other controllers to do the same; and
7. On an unspecified date, a co-worker (C2) stalked Complainant in a grocery store and put an inappropriate item in her shopping cart.1
In an investigative statement, Complainant stated that, on December 13, 2003, S1 would not acknowledge her request for FAM, which is an on-the-job training program. Complainant stated that she requested FAM on the daily worksheet and the break board request area, but S1 left that day without granting her request. She stated that the Agency denied her request.
Complainant further stated that on December 13, 2003, S1 yelled at her and asked why she came to work early, although S1 had approved her to come to work early. Complainant stated that she had been coming to work early every Saturday for a 9:00 a.m. shift for two and one-half months.
Complainant stated that S1 denied her annual leave on December 24, 2003. Complainant stated that S1 deliberately took a co-worker off the "swing shift to put the freeze" on her leave request, which was subsequently approved by another supervisor. Complainant further stated that C1 yelled out "figure out who screwed you out of holiday leave" in the Control Room while S1 just sat and smirked.
Complainant also stated that on December 20, 2003, she submitted a FAM request, but it was ignored all day. Complainant stated that, later that day, the Controller-In-Charge (CIC) purposely sought Complainant in the break room at the end of her tour of duty and told her to provide breaks for the swing shift because she was working credit hours.
Complainant that on January 6, 2004, a male controller "passed" when Complainant offered to provide him with a break but accepted a break from another male controller one minute later. Complainant further stated that, for months, when she parked in the angled parking lot, S1 would park so close to her that she had a very difficult time exiting her vehicle. She stated that, one day, many males parked their cars near her vehicle, and she complained to a supervisor. Complainant stated that S1 continued to park near her, and on one occasion, S1 parked close to her and laughed, which another supervisor witnessed. She further stated that C2 parked his truck so close to her that she could not exit her vehicle. Complainant stated that C2 also "stalked" her at a grocery store and placed an inappropriate item in her grocery cart. Complainant also stated there have been nine incidents wherein her car tires were flattened, blown out, or had nails in them. Additionally, Complainant alleged that S1 referred to particular women as "the stupid woman from El Dorado Hills" who cut him off in traffic, a "dumb bitch at Walmart," and "my fucking wife." .
S1 (male) stated that he did not deny Complainant FAM and was absent on the day Complainant alleged he denied her FAM. S1 further stated that he denied Complainant leave three times because of the staffing needs of the Agency. He stated that he did not know of any parking lot incident wherein he blocked Complainant's egress or ingress. S1 also stated that he did not have any direct knowledge of a denial of break time but normally the supervisor does not schedule time off because employees on the work schedule typically self-govern the rotation of break periods.
The Air Traffic Manager (ATM) (female) stated that FAM is considered training, and employees are only granted FAM when the employee has need for the training. The ATM stated that Complainant has been on several FAM trips, including visits to local control towers and a public noise meeting. The ATM further stated that Complainant was assigned a 9:00 a.m. shift, and facility policy only permits her flexibility to arrive up to 30 minutes early without prior supervisory approval. She stated that Complainant was advised of this policy on numerous occasions but still chose to come in more than 30 minutes early. The ATM also stated that numerous employees reported flattened and punctured tires on their vehicles, and the Agency has paid damage claims related to the damage. She stated that damage was caused by "security gate teeth," which have been removed because of the numerous damage reports.
Regarding the leave request of December 24, 2003, The ATM stated that Complainant had no available leave at that time, and supervisors were counseled to not approve leave requests from employees who had no leave balance. The ATM stated that employees without leave balance automatically go into Leave without Pay status (LWOP). The ATM stated that for that pay period, Complainant had a negative leave balance.
The AJ's Decision
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 AJ. Complainant timely requested a hearing. The Agency moved for a decision without a hearing on November 6, 2006, and the AJ granted the Agency's motion in a decision dated September 14, 2007. In that decision, the AJ found Complainant failed to prove that she was subjected to unlawful harassment because the alleged actions were not severe or pervasive enough to constitute a hostile work environment. The Agency subsequently issued a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that, contrary to assertions in the AJ's decision, her attorney opposed the Agency's motion for a decision without a hearing. Complainant further contends that the investigator failed to interview several of her witnesses. Complainant also contends that the ATM's testimony is not credible because she was terminated from the Agency. The Agency requests that we 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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 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 the 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
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Complainant's Motion to Amend
As an initial matter, we note that, on June 24, 2005, Complainant moved to amend her complaint with additional claims. According to 29 C.F.R. � 1614.106(d), "[a]fter requesting a hearing, a complainant may file a motion with the administrative judge to amend a complaint to include issues or claims like or related to those raised in the complaint." The AJ denied Complainant's motion.
In her motion, Complainant alleged that, from December 1996 until April 2005, nine individuals harassed her, including S1 and C2. Specifically, Complainant alleged that a co-worker watched pornographic movies at work in 1998; television programming with sexual content was shown in the office; a co-worker lodged a false complaint of sexual harassment against Complainant and made disparaging remarks about Complainant; a co-worker ridiculed Complainant on the controller floor, opened a drawer into her midsection and a cabinet door on her face, and ostracized her; a co-worker pointed his finger at Complainant, threatened Complainant, and tried to put on Complainant's jacket; a supervisor referred to Complainant as an "idiot boss" and screamed at her; and a co-worker denied Complainant assistance during high volume events. Complainant also reiterated her contention that S1 and C2 harassed her in the manner listed above.
Upon review, except for the matters that reiterate claims about S1 and C2, the Commission finds that Complainant has not established that her additional claims are like or related to her accepted claims. In so finding, we note that the additional claims involve actions by different actors than the accepted claims and involve matters that occurred up to seven years before the accepted claims. Moreover, the Commission finds that the acts in the present case are not interrelated by a common nexus, and therefore, do not constitute a continuing violation. See Howard-Grayson v. U.S. Postal Serv., EEOC Request No. 05990160 (Dec. 3, 1999). Consequently, we find that the AJ did not abuse her discretion when she denied Complainant's motion to amend.
The Investigation
Complainant contends that the investigator failed to interview several of her witnesses. We note that EEO regulations provide that an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact-finder to draw conclusions as to whether discrimination occurred. Id. Ultimately, agencies are responsible for conducting an appropriate investigation of complaints filed against them. EEO MD-110 at Chap. 5, � V.A. Accordingly, the investigator is required to conduct a thorough investigation, identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. Id. at Chap. 6, � VI.D. In essence, an investigator must exhaust those sources of information likely to support both the positions of a complainant and the agency. Id.
In this case, Complainant failed to identify the witnesses that the investigator failed to interview or the relevant testimony that these witnesses would provide. Moreover, after a thorough review of the record, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination occurred.
Hostile Work Environment
Complainant's complaint consists of numerous incidents that comprise an ongoing harassment claim. To establish a claim of harassment, a 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 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).
Upon review, we note that, the only record evidence of Complainant's opposition to the Agency's motion for a decision without a hearing is a one-page letter from Complainant's attorney dated November 24, 2006. In that letter, Complainant's attorney made no arguments about the merits of Complainant's complaint, and merely stated, "Obviously, [Complainant] opposes the motion. I want to file opposition and hope to address the schedule for briefing and the motion hearing, perhaps at the same time we calendar the hearing of the case." Even on appeal, Complainant did not provide any evidence that either she or her attorney submitted any argument to the AJ in opposition to the Agency's motion for a decision without a hearing.
Regarding the merits of Complainant's complaint, we find that the Agency provided legitimate, non-discriminatory reasons for each of the alleged actions, as recounted in detail above. Even assuming that Complainant's allegations are factually accurate, we find that Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that the Agency's explanations are pretext for unlawful discrimination. In so finding, we note that S1's alleged comments about his wife and other women, while inappropriate, are not necessarily evidence that S1 harbored animus against women in general but reflect animus against specific individuals. Essentially, beyond her bare and unsupported assertions, we that Complainant provided no evidence that the alleged actions were based on her sex or prior EEO activity. A finding that Complainant was subjected to a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by sex discrimination or reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we find that the AJ properly found that Complainant was not subjected to a hostile work environment based on sex or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this decision.
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
May 25, 2012
Date
1 We note that Complainant did not specify what the inappropriate item was during the investigation.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120080702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080702