0120160949
06-06-2018
Nina M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nina M.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120160949
Hearing No. 410-2014-00230X
Agency No. ARCEHECSA12SEP04700
DECISION
On December 29, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 24, 2015, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ), decision without a hearing which found that Complainant did not demonstrate that she was subjected to discriminatory harassment as alleged.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in issuing summary judgment in favor of the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Regional Logistics Manager, GS-13 at the Agency's US Army Corps of Engineers, South Atlantic Division (SAD), in Atlanta, Georgia. Complainant was a retired Colonel. The record revealed that the Agency underwent a reorganization and Complainant was assigned nationwide projects when in the past, Complainant had completed work for a division. It was widely understood that Complainant's new assignment was difficult in that she was responsible for exchanging large SUV's for smaller more fuel-efficient vehicles. She was also responsible for working with "clients" who were formally part of different districts, that wanted or needed to keep the larger SUVs.
Complainant's Supervisor, (S1), was not located at the Atlanta, Georgia location. Two Agency officials, RMO-1 and RMO-2, were located at the Atlanta, Georgia location, although they were not Complainant's direct supervisors. Complainant maintained that RMO-1 repeatedly subjected her to a hostile work environment based on her race and sex.
On January 10, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on race and sex from October 2011 to September 7, 2012, when RMO-1 made negative, rude, and demeaning comments to and about her. Specifically, she maintained that:
1. In October 2011, RMO-1 publicly referred to Complainant as being part of a "Black female mafia" and he made comments before SAD employees that he was going to take Complainant's resume to the Office of Counsel;
2. In November 2011, at a weekly staff meeting, RMO-1 focused critical questions in a hostile and sarcastic manner about Complainant's briefing;
3. Several dates in 2012 (no specific timeframe provided) RMO-1 criticized Complainant in a manner which could be overheard by her co-workers;
4. In January 2012, RMO-1 threatened Complainant for asking him to stop criticizing her to her subordinates, and he told her that if she was still in the military, he would fire her and sometime during October 2011 and January 2012, he made comments before SAD employees that Complainant was unqualified for her position;
5. On January 26 - 27, 2012, RMO-1 threatened Complainant by saying that subordinate-1 would end up in Complainant's position and that subordinate-1 was indeed a performer; while in his office he criticized Complainant to subordinate-2 in an effort to turn him against her and encourage insubordination; he told Complainant that it was obvious that she and her supervisor did not know what they were talking about, that there was an obvious disconnect and that they were "all screwed up;"
6. In January 2012 and March 2012, RMO-1 referred to Complainant's work as unacceptable; and in response to Complainant's request to be treated appropriately with dignity and respect, he again accused Complainant of not meeting his expectations and stated she was incompetent in not meting suspense dates;
7. On March 27, 2012, RMO-1 complained to the Director of the USACE Logistics Activity (ULA), S2, telephonically that Complainant was not doing her job; he told a subordinate) and other Senior Leaders during the Command's Annual Senior Leader Conference that Complainant would not know the answers to key questions if she were present; also in late 2011, on January 27, 2012, and March 27, 2012, he made comments to the ULA Director that Complainant was a non-performer and incompetent at various times; and additionally in March 2012, he told Complainant in a loud voice that he was "fed up" with her, which was overheard by one of his military subordinate leaders;
8. On May 1, 2012, RMO-1 told Complainant that when he became SAD Commander he was really going to "mess with" her; and
9. On September 17, 2012, RMO-2 told subordinate-4 that Complainant was incompetent, he did not understand how she succeeded as a prior senior leader, she had failed to follow his advice and failed in her job performance; and he then allowed her subordinate to make negative comments.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 26, 2015, motion for a decision without a hearing and issued a decision without a hearing on October 26, 2015. The AJ agreed with the Agency that the incidents complained of were not severe or pervasive enough to establish a hostile work environment because the incidents were related to Complainant's work performance and not her sex or race.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred by relying exclusively on the Agency's recitation of the facts, while ignoring her opposition. Complainant also asserts that the AJ did not consider various affidavits and other evidence in the record. Further, Complainant asserts that she was subjected to intense bullying and endured repeated outrageous behavior from RMO-1 and RMO-2. She described their behavior as loud, public, verbal attacks on her competence, her qualifications for the position, and which included threats to have her fired. According to Complainant, RMO-1 screamed at her in efforts to intimidate her and made comments about African American women to suggest that he held a severe bias against this class of employees.
Moreover, Complainant asserts that the AJ's decision did not address all of her claims. She explains that she originally had 19 claims, not the 9 claims to which the AJ condensed her allegations. Complainant indicates that there is overwhelming evidence in the record that shows that the RMO-1's actions were based on her race and sex. Complainant asserts that the evidence clearly shows that he treated black women in a hostile demeaning manner as evidenced by his "Black mafia" comment. Complainant contends that the contradictions in the record show that material facts are at issue. She maintains that she endured extreme hostile and disrespectful treatment, that was repeatedly carried out in front of or in earshot of her subordinates. She maintains that her supervisors were aware of her treatment by RMO-1 but did not intervene. Complainant requests that this case be remanded for a hearing.
In response, the Agency, contends, among other things, that the AJ correctly issued a decision without a hearing as no material facts were at issue. The Agency maintains that the incidents were not severe or pervasive enough as the comments were work related comments, related to Complainant's work ethic and achievements. The Agency maintains that Complainant did not show how RMO's behavior was related to her protected bases. The Agency requests that its final order be affirmed.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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).
Upon review of the record, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Harassment
It is well-settled that harassment based on an individual's race and sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on sex, age, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994) (Guidance).
Like the AJ, we simply do not find that evidence in the record creates a genuine issue of material fact that the comments and actions of RMO-1 and RMO-2 were based on Complainant's race or sex. In reaching this conclusion, we are in no way condoning the unprofessional conduct of these individuals, but merely acknowledging that Title VII is not a civility code. The claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. The comments at issue, for the most part, were work-related matters occurring over almost a year that focused primarily on RMO-1's opinion of Complainant's work performance. We do not find that the issues raised on appeal by Complainant warrant the remand of this matter for a hearing. We note that, in addressing the AJ's issuance of a decision without a hearing, 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. We do not find that in the instant matter.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___6/6/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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