Marva J. Smith, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 24, 2010
0120090475 (E.E.O.C. Jun. 24, 2010)

0120090475

06-24-2010

Marva J. Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Marva J. Smith,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120090475

Hearing No. 480-2007-00422X

Agency No. 200P-0600-2006102975

DECISION

On October 29, 2008, Complainant filed an appeal from the Agency's

final action 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the Agency's final action.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge's

issuance of a decision without a hearing was appropriate; and (2) whether

Complainant established that she was subjected to harassment in reprisal

for prior protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant

worked as a Program Support Assistant, GS-5, Human Resources Management

Service (HR) at the agency's VA Medical Center (VAMC) in Long Beach,

California. Formal Complaint, at 1. As a result of a June 27, 2005

settlement agreement from a prior EEO complaint, Complainant was detailed

temporarily to HR from another department.1 Report of Investigation

(ROI), at Ex. C-15.

Complainant alleged that she was harassed by the Chief of HR and the

Lead HR Specialist. EEO Counselor's Report, at 2. The Chief of HR

was Complainant's Immediate Supervisor (S1) and had negotiated, as the

Agency's HR Technical Representative, the settlement agreement that

resulted in Complainant's detail to HR, but otherwise was not involved

with Complainant's prior EEO complaint. S1's Aff., at 3-7. The Lead HR

Specialist (CW1), who was supervised by S1, worked with Complainant but

did not have supervisory authority over her. CW1's Aff., at 3-4.

On August 30, 2006, Complainant filed an EEO complaint alleging that she

was subjected to a hostile work environment on the basis of reprisal for

prior protected EEO activity. Complainant cited the following incidents

as part of her harassment claim:

1. from August 2005 to the present, management continuously monitored

and increased surveillance of her performance/action;

2. from September 2005 to July 14, 2006, management ceased to assign

her duties such as running errands within the facility;

3. on November 13, 2005, management accused her of avoiding training;

4. from November 14, 2005 to November 19, 2005, management placed her

in Leave Without Pay (LWOP) status;

5. on November 29, 2005, management accused her of not providing office

coverage;

6. on January 4, 2006, management accused her of not following

instructions and threatened her with disciplinary action;

7. in January 2006 and February 2006, management instructed her to leave

notes regarding her whereabouts and threatened her with disciplinary

action;

8. from September 2005 to July 5, 2006, management constantly contacted

the Union to report what it deemed as inappropriate behavior on her part;

9. from August 2005 to July 14, 2006, management continuously accused

her of disappearing from her work area;

10. from August 2005 to June 2006, management repeatedly denied her

provisions to accommodate lunch breaks and 15-minute breaks;

11. from May 18, 2006 to the present, management failed to provide her

with a designated work area and denied her access to a computer and a

telephone to perform her work;

12. from May 18, 2006 to the present, management denied her work

assignments;

13. on May 18, 2006, management accused her of "taking" two laptop

computers attached to a fingerprinting system;

14. from May 25, 2006 to June 6, 2006, management charged her Absent

Without Leave (AWOL) and placed her on LWOP status;

15. from June 6, 2006 to July 7, 2006, management continuously requested

her to provide personal information which was not work-related;

16. on July 7, 2006, management issued her a Proposed Seven-Day

Suspension;

17. from July 13, 2006 to July 17, 2006, management charged her AWOL

and placed her on LWOP status;

18. on July 25, 2006, management charged her AWOL and placed her on LWOP

status; and

19. management prevented her from competing for employment opportunities

and she was denied advancement on May 9, 2006, May 10, 2006, and July

3, 2006.

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 objection, the AJ granted the

Agency's September 28, 2007 motion for a decision without a hearing

and issued a decision without a hearing on August 18, 2008, in favor of

the agency. When the Agency failed to issue a final order2 within forty

days of receipt of the AJ's decision, the AJ's decision finding that

Complainant failed to prove that she was subjected to discrimination

as alleged became the Agency's final action pursuant to 29 C.F.R. �

1614.109(i).

In her decision, the AJ noted that there were no disputes of material fact

precluding summary judgment and that Complainant had a full opportunity

for discovery. Administrative Judge's August 18, 2008 Decision (AJ

Decision), at 1, 10. The AJ found that Complainant failed to establish

her claim of harassment because the Agency articulated legitimate

explanations for management's actions and Complainant failed to show

that those actions constituted retaliation for her prior EEO activity.

Id. at 10-15.

CONTENTIONS ON APPEAL

On appeal,3 Complainant asserts that summary judgment was improper

because she did not have an opportunity to develop her case through

discovery and therefore could not properly respond to the Agency's motion

for summary judgment. Complainant's Appeal Brief, at 3. Complainant,

citing a May 8, 2008, Order Re-Opening Motion to Compel, argues that

the Agency was given until June 2, 2008, to provide discovery responses

and failed to do so. Id. at 2. In addition, Complainant analyzes the

Agency's motion for summary judgment and asserts that the motion itself

raises triable issues of material fact. Id. at 5-6, 11-24. Finally,

Complainant submits a new declaration in support of her appeal.

In response,4 the Agency requests that we affirm the AJ decision and

its final order.

ANALYSIS AND FINDINGS

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), Chapter 9, � VI.B. (Nov. 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").

Summary Judgment

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 AJs to issue decisions without a hearing when they

find 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).

Finally, AJs should not rule in favor of one party without holding a

hearing unless they ensure 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 a careful review of the record, we find that the AJ's issuance

of a decision without a hearing was appropriate. The record has been

adequately developed, Complainant was given notice of the Agency's motion

to issue a decision without a hearing, she was given an opportunity

to respond, she was given a comprehensive statement of undisputed

facts, and she had the opportunity to engage in discovery. On appeal,

Complainant asserts that a hearing is necessary because she did not

have an opportunity to develop her case and triable issues of material

fact exist. However, we find that Complainant had sufficient opportunity

to engage in discovery as she was given ample time to obtain evidence

supportive of her allegations based on the AJ's order establishing a

90-day period of discovery. See May 24, 2007 Acknowledgment and Order.

Complainant subsequently filed a September 24, 2007 motion to compel

discovery, but the AJ denied the motion, holding that the discovery motion

was not timely served as it was issued almost three months after issuance

of the Acknowledgment and Order. See May 8, 2008 Order. In addition,

we find that, even if we assume all facts in favor of Complainant, a

reasonable fact-finder could not find in Complainant's favor, as explained

below. Therefore, no genuine issues of material fact exist.

Harassment

To establish a claim of harassment based on race, sex, disability, age,

or reprisal, complainant must show that: (1) she is a member of the

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 the statutorily

protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal

No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct

should be evaluated from the objective viewpoint of a reasonable person

in the victim's circumstances. EEOC Enforcement Guidance on Harris

v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the case of harassment by a supervisor, complainant must

also show that there is a basis for imputing liability to the employer.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

The Commission concurs with the AJ's determination that Complainant

failed to establish a prima facie claim of harassment, in that she has

not established that the agency's actions were based on her protected

classes. Regarding the leave issues, S1 attested that when an employee

takes unscheduled leave, management temporarily records the leave

as LWOP until the employee formally requests annual leave or sick

leave and submits any required documentation. S1's Aff., at 19-20.

Regarding the time and attendance issues, S1 attested that, although

Complainant's responsibilities included running errands within the VAMC,

there were lengthy periods of time when she could not be located and

she would leave work an hour early by combining her 30-minute lunch

break with her two 15-minute breaks at the end of the day. Id. at

13-16, 28. S1 attested that, in order to account for Complainant's

whereabouts during the day, she asked Complainant to leave notes to let

people know where she would be when she was running errands. Id. at 13.

Regarding the denial of work space and equipment, S1 acknowledged that

Complainant did not have a regular work area after HR relocated, but

attested that HR had experienced problems obtaining equipment and that

other employees moved to different work areas as needed. Id. at 29-30.

Regarding interference with competition for employment, S1 attested,

and Complainant has not shown otherwise, that she did not improperly

influence the application process to prevent Complainant from competing

for job opportunities within the Agency. Id. at 49-52.

Complainant argues on appeal that "the circumstantial evidence shows

a direct and strong link of the harassment to [her] prior EEO claim"

because she was the only employee in HR who had a prior EEO claim,

the HR staff knew of the prior claim, and "there is no other reasonable

explanation for the horrendous treatment [she] suffered ... at the hands

of the Agency management." Complainant's Appeal Brief, at 4. Aside from

Complainant's bare assertions, we find that the evidence in the record

is insufficient to support a finding that management's actions toward

Complainant were motivated by retaliatory animus and not by legitimate,

non-retaliatory reasons. As such, we find that Complainant has not

established her claim of harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission AFFIRMS

the Agency's final action.

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), at 9-18 (Nov. 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

June 24, 2010

Date

1 The June 27, 2005 settlement agreement resolved Agency

No. 200N-0600-2003103508. ROI, at Ex. C-15. Under the terms of

the settlement agreement, the Agency agreed to detail Complainant to

HR for a maximum of three months pending Complainant's selection or

reassignment to another GS-5 Program Support Assistant position. Id.

S1 attested that, at the end of the three-month period, Complainant,

the Agency's attorney, and the AJ from the prior case agreed verbally to

extend the time period to December 2005. S1's Aff., at 8-10. The record

reflects that Complainant remained in HR from June 2005 to December 2006.

Complainant's Aff., at 4-5.

2 On November 26, 2008, the Agency issued an untimely final order adopting

the AJ's finding that Complainant failed to prove that she was subjected

to discrimination as alleged.

3 On November 26, 2008, Complainant requested an extension of time to file

a brief in support of her appeal. On December 2, 2008, the Commission

granted an extension until January 9, 2009.

4 The Agency filed its January 5, 2009 response to Complainant's appeal

before Complainant filed her January 9, 2009 brief in support of her

appeal.

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0120090475

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090475