0120081837
12-24-2009
Marion L. Dearman, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Marion L. Dearman,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120081837
Hearing No. 550-2007-00265X
Agency No. EEODFS060126F
DECISION
On March 5, 2008, complainant filed an appeal from the agency's February
8, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted for de novo review, pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
ISSUES PRESENTED
(1) Whether the AJ properly issued a decision without a hearing in favor
of the agency.
(2) Whether complainant met her burden of establishing that she was
subjected to unlawful harassment and discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
for the Internal Revenue Service as a GS-0512-11 Revenue Agent in San
Jose, California. On June 12, 2006, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of race
(Caucasian), sex (female), disability (myofascial pain syndrome of the
neck, shoulder, lower back, and hip, fibromyalgia, carpal tunnel syndrome,
anxiety, and depression), and reprisal for prior protected EEO activity
[under Rehabilitation Act and Title VII] when:
1. On January 21, 2006, her manager (M1) initiated a Treasury
Inspector General for Tax Administration (TIGTA) investigation against
her for participating in the EEO process;
2. On December 13, 2005, M1 informed her that she was unaware of
wiretapping of her telephone;
3. On March 30, 2006, M1 screamed at her, made faces at her, was
mentally cruel towards her, laughed in her face, and threatened her when
she came to her Post of Duty to do complainant's annual evaluation;
4. On March 30, 2006, M1 berated her for typing too slowly and
threatened that this would be a problem if the manager's evaluation was
affected by her typing speed;
5. On March 30, 2006, M1 screamed at her because complainant
checked on the delivery of her request for an adaptive computer mouse,
and because she was angry that complainant had received 16 hours of
advanced sick leave that she had requested;
6. In April 2006, M1 refused to complete her yearly review and
disability paperwork; thereafter M1 threatened to suspend complainant
without pay;
7. On July 17, 2006, she was suspended without pay for 10 days; and
8. On October 25, 2006, she was ejected from the building by the
Criminal Investigation Division (CID), after she refused to give her
Revenue Agent credentials to a co-worker.
At the conclusion of the investigation, complainant was provided 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. Over complainant's objections, the AJ assigned
to the case granted the agency's August 17, 2007 motion for a decision
without a hearing and issued a decision without a hearing on February
5, 2008.
AJ Decision
The AJ addressed all of the claims under a harassment framework, finding
that complainant failed to show that the discriminatory conduct alleged
in the instant complaint was based upon her membership in any protected
class. Furthermore, the AJ concluded that complainant did not prove by a
preponderance of the evidence that she had been subjected to harassment of
such a nature that "a reasonable person would find it hostile or abusive."
The AJ noted in part that the undisputed evidence of record does not
show that any TIGTA investigation was initiated against complainant for
any reason whatsoever.
The AJ also addressed issue (6) under a disparate treatment framework,
noting that the undisputed evidence of record shows that complainant
was not in fact suspended without pay for any reason relating to
her yearly review or disability paperwork; that M1 sent complainant's
annual appraisal to complainant's home on May 3, 2006 for her review and
signature. The AJ found that the allegation fails as a matter of law.
The AJ also addressed issues (7) and (8) pursuant to a disparate treatment
framework, noting that it was undisputed that complainant was suspended
without pay, on July 17, 2006, for 10 days because of her behavior on
March 30, 2006. The AJ found that moreover, undisputed evidence shows
that no other employee under M1's managerial authority had demonstrated
conduct similar to that engaged in by complainant on March 30, 2006.
Accordingly, the AJ found that complainant cannot establish discrimination
occurred.
The AJ found that in issue (8), complainant alleged that on October 25,
2006, she was ejected from the building by the CID after she refused
to give her Revenue Agent credentials to a co-worker. The AJ found
however, that complainant's own statement belies this allegation.
Specifically, complainant stated in her sworn declaration "I was upset
and wanted to leave the building to get away from the fifth floor and
their harassing me. CID insisted I leave and walked me out the door.
The next day they would only allow me to return under heavy guard, I
would perceive this as force." M1 stated, and it is undisputed, that
complainant called her soon after the incident from her home to report
that she left the building voluntarily. M1 contacted CID and concurred
with their recommendation to restrict complainant's access to the office
for the duration of her employment. The AJ found that complainant did
not present any evidence of pretext. The AJ found no discrimination as
to the entire complaint. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that management has perjured itself
and the AJ's decision did not consider the evidence in the light
most favorable to her. She states that her telephone was wiretapped
pursuant to the TIGTA investigation and that the agent assigned to the
investigation lied in his testimony about the wiretapping and committed
perjury which was accepted by the AJ without allowing cross-examination
of the perjurer. Additionally, she states that M1 refused to accept her
reasonable accommodation request for leave, and that this refusal should
have been seen as discrimination. Complainant stated that she was not
allowed to bring forth a witness to testify. The witness, according to
complainant, was present at a meeting when M1 threatened her employment,
stating that it was "her job to get rid of [complainant]."
Complainant also stated that "the agency's suspension of a mentally
disabled employee for having a mental outburst at work when the
employee is not supported by correct medication is not a legitimate,
nondiscriminatory reason for action as [the AJ] claims." She further
explained that: "On March 30, 2006 complainant experienced an anxiety
attack and mental breakdown resulting in an angry outburst toward
those she perceived as persecutors, [M1 and the Union Representative]."
Finally, complainant maintains, the AJ's determination that there were
no issues of credibility was untrue. As an example, she recounts a
conversation she had with a TIGTA agent. The agent recounted a telephone
call complainant had with M1. According to complainant, she told the
agent that in order for him to have that information, he must have been
wiretapping the phone, to which she stated he replied "you didn't hear
it from me." Subsequently, complainant maintains, the TIGTA agent lied
to the EEO investigator when he said he had no knowledge of a wiretap.
In reply, the agency states that complainant now seeks to add a claim
regarding a reasonable accommodation request for medical appointments
completed on April 26, 2006. The agency notes that while complainant
submitted lengthy documents to the EEO Counselor, she made no mention
of this reasonable accommodation request during counseling. The agency
argues that by failing to timely contact an EEO Counselor, she has
waived this claim. The agency further asserts that although complainant
suggests, on appeal, that had she been allowed to proceed with a hearing,
she could have cross-examined witnesses and brought one witness on her
behalf, she has failed to identify what, if any, effect cross-examination
would have on the attestations in the investigative file. The agency
states that more importantly, her solitary proposed witness submitted a
declaration which supports the facts submitted by the agency. The agency
contends that complainant has not met her burden of persuasion to prove
that the agency's actions amounted to harassment.
ANALYSIS AND FINDINGS
Initially, we address complainant's contention that there should have
been an accepted issue regarding a reasonable accommodation request for
medical appointments completed on April 26, 2006. The record indicates
that complainant sent a letter dated September 2, 2006 to the EEO
Director clarifying issue (5). In that letter, she failed to assert that
a claim concerning reasonable accommodation had been improperly omitted.
Additionally, on September 14, 2007, complainant filed an Opposition to
the agency's "Motion for a Recommended Decision Without a Hearing", and
although she mentions that she has been discriminated against concerning
reasonable accommodation, she did not clearly state that the agency
improperly omitted an issue, nor did she ask that the AJ consider the
issue at that time. Accordingly, we discern no abuse of discretion on
the part of the AJ, in failing to include this claim. Administrative
Judges have broad discretion in the conduct of hearings. See 29 C.F.R. �
1614.109(e); Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO- MD-110) at 7-8 to 7-14 (revised November 9,
1999); Bennett v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).
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 EEOC Management Directive 110, 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").
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 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. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003). After a careful review of the record, the Commission
finds that the AJ's decision referenced the appropriate regulations,
policies, and laws. Moreover, we find that the AJ properly issued a
decision without a hearing because complainant failed to show that a
genuine issue of material fact exists or that there were any credibility
determinations such that a hearing on the merits is warranted.
As to complainant's contention that the AJ should have heard testimony
from an eye-witness to M1's comments that it was M1's "job" to get
complainant "out of here", we note that, because the evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences drawn in the non-moving party's favor, we have
assumed for purposes of this decision that this statement was in fact
made as alleged by complainant.
Harassment
We now address all of the incidents alleged, under a harassment framework.
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 (March 8, 1994).
With respect to element (5), an employer is subject to vicarious
liability for harassment when it is created by a supervisor with immediate
(or successively higher) authority over the employee. See Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93
(1998). However, where the harassment does not result in a tangible
employment action the agency can raise an affirmative defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise. See Burlington Industries,
supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999). This defense is not available when the harassment results in a
tangible employment action (e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee. In the case of co-worker
harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of
the conduct, unless it can show that it took immediate and appropriate
corrective action. Id.
Here, we assume that complainant is disabled pursuant to the
Rehabilitation Act, and that the alleged harassment is severe or
pervasive enough to be considered harassment. Still, the record does
not indicate that the harassment was motivated by discriminatory animus.
Even assuming that on March 30, 2006, M1 screamed at complainant, made
faces at her, was mentally cruel towards her, laughed in her face, and
threatened her, as alleged, there is no evidence that this conduct was
based on complainant's membership in a protected group. There is a great
deal of testimony in this record that indicates that M1 was reacting to
complainant's behavior. See Report of Investigation (ROI), Tabs 5, 9,
13, 14, 21. We also note that complainant concedes that she had an "angry
outburst" on that March 30, 2006. Although complainant contends that her
"angry outburst" resulted from her disability, we note that even assuming
that complainant is disabled, the Commission's Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities at
Question 30 specifically indicates that an employer may discipline an
individual with a disability for violating work place conduct standards
even if the misconduct results from a disability. Additionally, although
complainant asserts that her co-workers feared her, there is no evidence
that this was because of discriminatory animus, as opposed to based
on complainant's own conduct which she admits occurred. In addition,
even assuming, as complainant alleges (and M1 denies) that on August 18,
2004, M1 stated that it was her "job plan" to "get rid" of complainant,
this does not necessarily indicate that M1 harbored a discriminatory
motive based on complainant's membership in a protected group.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation Act case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). 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. McDonnell Douglas, 411 U.S. at 802. Next, the
agency must articulate a legitimate, nondiscriminatory reason(s) for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the agency is successful, then the complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming complainant could establish a prima facie case of discrimination
as to issues (6), (7) and (8), the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not raised
a genuine issue of material fact that such reasons were pretexts.
In addition, there is no disputed genuine of material fact as to the
alleged wiretapping claim, issue (1), because there is no evidence, beyond
complainant's assertions, that the telephone was in fact wiretapped.
M1 stated that on January 21, 2006, she initiated a call to TIGTA,
but that she was inquiring into procedures that could be taken to
eliminate telephone calls that complainant had told M1 were harassing
in nature. M1's account of the situation is further corroborated by
complainant's acknowledgement that she "had anonymous phone calls,
some sexual in nature, prior to January 2005." Even assuming, as
we must, that the Special Agent stated "You didn't hear it from me,"
concerning complainant's inquiry about whether her telephone was being
wiretapped, this does not raise a genuine issue that the wiretapping in
fact occurred. Complainant said that the agent gave this reply when she
had asked him how he knew the details of a conversation that complainant
had with M1. However, there are other ways that the agent could have
learned about the conversation, such as from M1 herself. Additionally,
although complainant contends that her telephone started buzzing in about
February 2005, a telephone could certainly "buzz" for a number of other
reasons. Accordingly, we find that complainant has failed to establish
discrimination as to the specific challenged actions in her complaint.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute. Therefore, we AFFIRM the agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
____12/24/09______________
Date
2
0120081837
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120081837