0120071033
05-06-2009
Regina D. Allen, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Regina D. Allen,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120071033
Hearing No. 230-2003-04175X
Agency No. 020386SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts complainant's
December 14, 2006 appeal from the agency's November 14, 2006 final
order. Complainant alleged that the agency discriminated against her
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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-14 District Manager at the agency's Lansing, Michigan Field
Office. Complainant initially contacted an EEO counselor on March 7, 2002
and subsequently filed an EEO complaint on July 8, 2002. The complaint,
as amended, alleged that the agency subjected her to a hostile work
environment based on race (African American) and age (52) when:
1. On January 23, 2002, her Area Director (AD) admonished her to
do something about her drinking problem;
2. After employees of her office filed a grievance naming her,
the AD sent Area Director's Office (ADO) staff to her office to tell
her how to run it;
3. The AD overruled her preference for filling the Technical Expert
position, resulting in a selection that complainant did not want;
4. The AD did not support her management staff's proposal to reassign
T2 folder shipment to the office CDC;
5. The AD permitted her Assistant District Manager to bypass
complainant and report directly to him;
6. The AD was instrumental in the directive to complainant to allow
her office to participate in the "Take Our Children to Work" day;
7. The AD stopped direct communication with her and instead
communicates with her through the Area Administrative Assistant;
and that the agency discriminated against her in reprisal for prior EEO
activity when:
8. On September 15, 2002, she was reassigned to the position of
Social Insurance Specialist and placed alone in a conference room;
9. Since January 23, 2002, the AD has not provided her with a
performance discussion;
10. The Acting AD seized her budget book;
11. The Acting AD stated that she was improperly obtaining queries
to provide to the State Police; and
12. The AD attempted to force her into voluntary retirement.
Following investigation of her complaint, complainant requested a hearing
before an EEO Administrative Judge (AJ). The agency moved for a decision
without a hearing, arguing that no genuine issue of material fact existed.
Over complainant's objections, the AJ issued a decision without a hearing,
in favor of the agency.
The undisputed record shows that complainant worked as a District
Manager for seven years; the last four years were in Lansing, Michigan.
The productivity and morale of her office had been in decline. During a
January 23, 2002 review, the AD issued complainant's performance appraisal
and discussed a number of operational, personnel and administrative
issues with her. Within the discussion, the AD told complainant about
statements from various employees who said they had observed complainant's
personal problems, which included consuming alcohol. The AD advised
complainant of the availability of the Employee Assistance Program, if
this were true. Complainant countered that her decisions and actions were
being hyper-criticized. She noted that she always received Satisfactory
Evaluations.
On May 6, 2002, the AD requested a Personnel Management Evaluation
(PME) for Lansing. The PME team visited Lansing on June 25 and June 26,
2002, and interviewed 45 individuals. The PME team revealed widespread
morale issues stemming from complainant's conduct. The PME team noted
significant concerns regarding complainant's management style, office
performance and apparent power struggles. Complainant was relieved
of her duties as a District Manager on September 17, 2002, when she
was reassigned to the position of Social Insurance Specialist, Project
Manager, in the AD's Office. Complainant continued to receive the same
pay and retained her seniority level, but she was physically isolated
from the rest of the office. Complainants pointed to other managers, whom
complainant said made mistakes but were allowed more flexibility. The
record shows that the other employees identified by complainant were in
different offices or in different management positions.
The agency proffered two reasons for its actions. First, the agency
contended that complainant's performance had deteriorated to an
unacceptable level and she had created an environment of fear and
animosity in her office, prompting operational concerns.1 Complainant
did not point to any evidence of record to support her claim that the
agency's stated reasons were a pretext for discrimination. Instead,
she stated that her decisions were hyper-criticized and that she has
answered all of the questions from the PME team. The questions included
inquiries regarding her district going over-budget.
As noted, the AJ issued a decision without a hearing, on September 26,
2006. The AJ determined that there were no material facts in dispute. The
AJ noted, inter alia, that there was no indication that any member of the
review team was aware of complainant's EEO activity. The AJ found that
complainant failed to produce evidence to support her claims. The AJ noted
that the record indicated that complainant and her office had been flagged
as needing intervention from the Area Director's Office at least a year
before her reassignment and before her initial EEO counselor contact.
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.
On appeal, complainant objects that the agency did not provide any
explanation of its treatment of other Black female district managers
at other locations. In addition, complainant states that the agency
relied on non-contemporaneous accounts; disputes the implications of
the agency's stated reasons; and argues that the reasons proffered by
the agency are not sufficient to justify its decisions.
The agency contends that its actions were prompted by operational concerns
and the determination that complainant had created an environment of
fear and animosity for her subordinates. The agency asserts that the
AJ correctly found that complainant offered no credible evidence to
show that the agency's actions were a pretext for race discrimination
or retaliation.
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 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"). 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. Department of Defense, 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).
After a careful review of the record, we find that no genuine issue
of material fact exists. 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 to the motion
and a comprehensive statement of undisputed facts, and she responded to
the motion. She had the opportunity to engage in discovery but did not
file any motions to compel discovery. Although complainant responded to
the motion for a decision without a hearing, the responses did not point
to evidence that was material to the issue of discriminatory animus or
a hostile environment.
To establish a prima facie case of hostile environment harassment,
complainant must show that: (1) she is a member of 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 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. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Looking at the evidence in the light most favorable to complainant,
the record does not provide evidence to show that the agency's actions
were a pretext for discrimination because of complainant's race, age, or
retaliation. Further, with regard to the retaliation claim, there is no
evidence to show that the deciding officials were aware of complainant's
EEO activity. Even assuming for the sake of argument that complainant
established a prima facie case of discrimination or reprisal, there is
no evidence that would indicate that the agency's stated reasons with
regard to its actions (operational concerns and declining productivity)
were untrue or a pretext to discriminate against complainant because of
her race, age, or reprisal. Even if complainant's satisfactory evaluation
was sufficient to show that her performance had not deteriorated, the
agency's second reason (its assessment that complainant had created an
environment of fear and animosity for her subordinates) stands undisputed
by any evidence of record.
CONCLUSION
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 Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred as alleged.
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 tends 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
May 6, 2009
Date
1 The record reflects that in 2001, the AD had received a third-stage
grievance filed by nine employees, who sought a cessation of abusive
and degrading treatment of staff by complainant. Two employees indicated
their plan to retire because of mistreatment by complainant.
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0120071033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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