0120161235
03-20-2018
Randee D.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randee D.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120161235
Hearing No. 443-2014-00201X
Agency No. BOP-2013-01074
DECISION
On February 7, 2016, 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 January 8, 2016, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Complainant has established that she was subjected to a hostile work environment and reprisal with regard to a number actions, including, among others, unfavorable comments concerning her age and senior-employee status; a lowered performance evaluation; additional requirements to her caseload; and placement on a Performance Improvement Plan (PIP).
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Drug Treatment Specialist (DTS), GS-11, at the Agency's Waseca, Minnesota Federal Correctional Institution (Waseca FCI).
On November 26, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of age (46) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when, from May 2013 to January 7, 2014, she was subjected to unfavorable comments regarding her age; received a lowered evaluation; was placed under investigation; accused of missing a deadline; singled out by having additional requirements associated with her caseload; and placed on a PIP.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 5, 2015, motion for a decision without a hearing, and issued a decision without a hearing on November 25, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency had subjected her to discrimination as alleged.
The investigative record shows that Complainant was one of the Drug Treatment Specialists in the Agency's residential drug abuse program (RDAP), which served the inmates at the facility five days per week. Complainant worked on a compressed work scheduled, which meant that she worked ten-hour days Monday through Thursday and was off work every Friday. Complainant's first-level supervisor, S1, served as the Drug Abuse Program Coordinator. S1 assigned another DTS to handle Complainant's residential programing responsibilities on Fridays.
At a staff meeting upon S1's assumption of duties at the facility, she is alleged to have stated that "there is no reason why older senior staff can't do more work than the others." For instance, a fellow DTS in Complainant's protected age class (CW1) provided testimony that, while he could not remember S1's exact statement, she said something to the effect of "[s]enior staff don't want to work." Evidence also was presented that described understanding S1's comments to mean that she had greater expectations from her more senior, experienced staff, but not in terms of age. In this regard, a second DTS in Complainant's protected class (CW2) testified that "[t]he only comment that I heard her (S1) say was she had thought there would have been more professionalism from those of us that have had 10 or more years of experience as a Drug Treatment Specialist. ... [F]rom what I gathered from (S1), was this is your job, you're expected to do your job, you've been doing it for more than 10 years, you know, so she was expecting that we could do the job. ... [I]t was a general statement because there did seem to be this sense of entitlement that she couldn't come in and tell us to do additional work."
The record further reflects that S1 had issues with the agency's Memorandum of Understanding (MOU) concerning work schedules, and believed it presented problems for staffing the RDAP. Complainant talked to her second level supervisor about her concerns that she was being treated unfairly by S1, in terms of additional assignments and her belief that S1 had issues with her because of her involvement with the negotiating the MOU and her work schedule. Thereafter, Complainant sent a memo to the Warden stating that S1 had created a hostile work environment, and because of S1's hostility toward the MOU and Complainant's compressed work schedule, S1 had given her new duties that were impossible to complete. Complainant also expressed her concerns that her evaluations had gone down since the arrival of S1. Beyond a transitory allusion to S1's ire being directed at "older/senior staff," there is no specific claim of age discrimination in the memo.
Subsequently, the Agency organized a threat-assessment committee to look into Complainant's concerns with S1. The committee concluded that the conflict between Complainant and S1 derived primarily from the MOU and Complainant's compressed work schedule.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ's decision failed to consider the aged-based discriminatory animus of the responsible management official. In this regard, she references investigative testimony by CW1 concerning S1's comments about "senior staff." Complainant also contends that the fact that she provided a statement for CW1's EEO complaint supports her reprisal claim. Additionally, Complainant challenges the sufficiency of the investigation of this matter. The Agency reiterates its position that the record was sufficient to support the AJ's finding of no discrimination.
STANDARD OF REVEIW
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 Chap. 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
AJ's Issuance of a Decision Without a Hearing
We must 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 are no genuine issues 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 undisputed material facts, and she was given the opportunity to respond to such a statement. 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.
Hostile Environment Harassment
To establish a claim of discriminatory hostile environment harassment, 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 his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her age or prior EEO activity under Title VII. Only if Complainant establishes both of those elements, hostility and discriminatory motive, will the question of Agency liability present itself.
In the instant matter, Complainant failed to show that S1's actions were based on the protected class of age. Assuming that S1 made comments to the effect of "older" or "senior" staff being able to handle more responsibility or leadership, the record here reflects that those comments were directly related to a belief on the part of management that experienced staff should be relied upon to handle the workload. There is no showing that any comments to that effect related to the Complainant's biological age.
Nor are we persuaded by Complainant's reprisal-based claims. The record shows that there was tension from the very beginning of the time that S1 arrived at the facility to serve as the Drug Abuse Program Coordinator. This tension initially rose from S1's belief that Complainant's compressed work schedule, although allowed under the MOU, affected her ability to be at the facility every day to serve her charges under the RDAP. The tension was further exacerbated by Complainant's belief, unsupported by the record, that S1's comments about experienced workers handling more responsibility were based on discriminatory age bias.
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 implementing the AJ's final decision finding no discrimination.
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
3/20/18__________________
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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0120161235