0120053253
02-23-2007
Norma King-Joiner, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Norma King-Joiner,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120053253
Hearing No. 210-2004-0241X
Agency No. 200K-810-2003-1038
DECISION
On March 29, 2005, complainant filed an appeal from the agency's February
28, 2005, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
On September 8, 2003, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
sex (female), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when: (1) on June 17 and 18, 2003,
her Supervisor (S1) subjected her to a hostile work environment during
meetings; (2) on June 27, 2003, S1 threatened to place complainant on
a Performance Improvement Plan (PIP); (3) in July of 2003, S1 denied
complainant a career-ladder promotion to the GS-14 level; (4) on August
1, 2003, S1 reprimanded complainant; and (5) on November 18, 2003, S1
initiated an Administrative Board of Investigation (ABI) to investigate
her conduct.
The record indicates that complainant has been employed by the agency
since 1984. Prior to 2002, complainant was employed as a Team Leader at
the agency's Readjustment Counseling Service's (RCS) Shreveport, Louisiana
office. S1 promoted complainant to the position of Regional Manager of
the agency's Central Region in 2002, and became her immediate supervisor.
In that position, complainant was responsible for supervising 30 Veterans
Center teams in the Midwest. The record further indicates that in April
of 2003, one of complainant's subordinates filed a hotline complaint to
the agency's Office of Inspector General (OIG) alleging that she engaged
in fraud, waste and abuse of government funds and took inappropriate
personnel actions.
In June of 2003, S1 met with complainant to conduct an on-site visit in
connection with the OIG investigation. Subsequently, complainant met
several times with S1 to discuss complainant's hiring of an employee
(E1) at the GS-13 level. Complainant stated that during a meeting in
her office with S1, he discussed with her a pending OIG investigation
against her, a pending EEO case which identified complainant as the
discriminating official and the situation regarding the hiring of the
employee. On June 27, 2003, complainant and S1 spoke on the telephone,
and complainant informed S1 that she felt he was harassing her. S1 stated
that he was placing complainant on a PIP, although the record does not
indicate that she was placed on a PIP. On August 1, 2003, the Associate
Director of RCS issued complainant a written reprimand, regarding the
improper hiring of E1, and by failing to answer the questions of S1 on
July 3, 2003. On August 27, 2003, S1 was informed of the EEO case which
complainant had filed and the bases of her complaint. Complainant filed
her formal complaint of discrimination on September 8, 2003. Subsequently,
on November 18, 2003, S1 appointed an ABI to investigate claims of
complainant's improper conduct. The ABI conducted an investigation and
issued findings and conclusions in February of 2004.
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 on April 20, 2004. Pursuant to the agency's Motion
for Summary Judgment, the AJ determined that complainant's allegations
(1), (2) and (5) did not warrant a hearing and issued a decision without a
hearing on those allegations on December 8, 2004. Regarding complainant's
allegations (3) and (4), the AJ held a hearing on January 18, 2005 and
issued a decision on January 25, 2005. 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.
I. AJ's December 8, 2004 Decision
In the AJ's decision dated December 8, 2004, he noted that regarding
complainant's allegations (1), (2) and (5), the agency was entitled to
summary judgment as the undisputed facts did not demonstrate that S1
engaged in sufficiently severe or pervasive conduct to have altered
the conditions of complainant's employment and to have created an
abusive working environment. The AJ found that complainant's hostile
work environment claim constituted her objection to how S1 went about
supervising her performance as Regional Manager and S1's displeasure with
what he perceived as her insubordination. The AJ noted that complainant
was not placed on a PIP, and the act of initiating an investigation
on November 18, 2003 into complainant's conduct and being the subject
of ABI's investigation did not cause her to suffer a loss or harm
with respect to the terms and conditions of her employment. The AJ
found there was no evidence to suggest that S1 harbors a bias against
African-Americans or women, and in fact S1 had promoted complainant to
the Regional Manager position.
In addition, the AJ found that the agency was entitled to summary judgment
regarding complainant's claims of retaliation. In the instant case,
the AJ found that complainant contacted an EEO counselor for the first
time on July 29, 2003 and S1 did not become aware of the contact until
August 27, 2003. The AJ noted that by this time, complainant had been
denied a career-ladder promotion and been issued a written reprimand.
The AJ noted that complainant alleged her prior protected activity
was her participation in two (2) EEO cases brought by other employees
identifying her as the discriminating official.1 As such, the AJ
found that complainant could not allege as prior protected activity an
EEO case in which she was named as the discriminating official. Thus,
the AJ found that the fact complainant engaged in EEO cases wherein she
defended herself and the agency against claims of discrimination did not
raise the required inference of unlawful reprisal in the instant case.
II. AJ's January 25, 2005 Decision
The AJ then held a hearing on complainant's allegations (3) and (4)
on the bases of race and sex. The AJ noted that on these allegations,
complainant alleged that S1 failed to give her a GS-14 promotion in July
of 2003 and gave her a written reprimand on August 1, 2003 due to her race
and sex. However, the AJ found that complainant failed to establish a
prima facie case of discrimination on either allegation. In so finding,
regarding allegation (3), the AJ found that complainant failed to proffer
evidence that there were any similarly situated employees not in her
protected groups who were treated differently. Regarding a comparison
employee cited by complainant, the AJ noted that S1 stated this employee
was a better performer than complainant as he completed his site visits
in a timely manner, while he had serious reservations about the quality
of complainant's work. The AJ also found no merit to complainant's
allegations that she was entitled to an automatic promotion to the GS-14
level after one (1) year. AJ's Decision at 12.
Regarding the written reprimand, the AJ noted that it was based on two (2)
charges of poor conduct: the hiring of E1 and insubordination. The AJ
initially found the evidence established complainant was not authorized
to hire E1. AJ's Decision at 12-13. Further, the AJ noted that S1
stated he would not have authorized the hiring of E1 as the Deputy
Manager for the Central Region, as neither complainant nor the employee
were licensed mental health professionals. S1 also stated that he did
not recall authorizing complainant to temporarily promote the employee
to GS-13 status as he had been serving in a temporary status for longer
than 90 days. AJ's Decision at 10-12. As such, the AJ found that based
on the testimony of S1 and complainant, there was insufficient basis to
conclude that S1 concocted the first charge in the reprimand (unauthorized
hiring of E1) to discipline complainant. Addressing the second charge in
the reprimand (insubordination), the AJ noted that the evidence revealed
the telephone conversation between complainant and S1 at issue in June
of 2003 was "strained." The AJ noted that complainant conceded she was
unable to answer one of S1's questions and asked him to put the question
to her in writing. The AJ found that the hearing testimony of agency
witnesses established that complainant did not recognize S1 as her
supervisor and acted unacceptably during the telephone meeting in July
of 2003. AJ's Decision at 15. As such, the AJ found that based on the
testimony of the witnesses, there was no basis to conclude that the second
charge in the reprimand was fabricated by S1 to discipline complainant.
The AJ found that he did not believe complainant's testimony regarding
the telephone conversation, and noted she had been insubordinate during
the conversation with S1. AJ's Decision at 15-17. Further, the AJ found
that the most compelling evidence weighing against complainant's charge
of racism was the fact that S1 hired her to fill the Regional Manager
position. On appeal, complainant alleged that the AJ's decisions were
erroneous, and requested the Commission to overturn the decisions and
enter a finding of discrimination. The agency responded to complainant's
appeal, urging the Commission to affirm the AJ's decisions.
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. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without 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); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).
Initially, regarding complainant's allegations (1), (2) and (5), we
find that the AJ properly concluded that there were no genuine issues
of material fact in dispute such that a decision without a hearing was
appropriate. Regarding those allegations, after a review of the record
in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final order, because the AJ's issuance of a
decision without a hearing was appropriate and a preponderance of the
record evidence does not establish that discrimination or retaliation
for prior EEO activity occurred2.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Addressing complainant's allegations (3) and (4), we concur with the AJ's
finding that complainant failed to establish that the agency discriminated
against her due to her race or sex.
With regard to the failure to promote her to the GS-14 level, the AJ took
note of the fact that promotion to GS-14 was not automatic after a year
just because complainant was in a career ladder position. An employee had
to demonstrate that they were performing at a GS-14 level. The testimony
indicated that the comparison employee she cited was a better performer
than complainant because, unlike complainant, he completed his site visits
in a timely manner. Also, S1 had serious reservations about the quality
of complainant's work. Regarding the reprimand issued on August 1,
2003, we note that the AJ assessed the credibility of the witnesses and
found complainant failed to proffer evidence establishing the agency's
articulated reasons for issuing the reprimand were more likely than not a
pretext for race and/or sex discrimination. Therefore, because we find
that there is substantial evidence in the record to support the AJ's
decision, we AFFIRM the agency's final order as regards complainant's
allegations (3) and (4).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____2/23/07______________
Date
1 The AJ noted that complainant did not disagree with his finding that
her contacting the EEO counselor in July of 2003 and filing a formal
complaint in September of 2003 was not the prior protected activity for
which the agency engaged in acts of retaliation against her. Rather,
the AJ noted that complainant alleged that because she participated in
two (2) EEO cases which were brought alleging her as the discriminating
official, and S1 was aware of these cases before June 17, 2003, she was
entitled to raise the reprisal claim.
2 The Commission notes that although not directly addressed by the AJ,
while S1's initiating of the ABI investigation occurred after he became
aware of her filing a formal EEO complaint, there is no evidence in the
record that complainant suffered any adverse action as the result of
the ABI investigation.
??
??
??
??
2
0120053253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120053253