0120080955
08-03-2009
Ruth M. McCoy, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Ruth M. McCoy,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120080955
Hearing No. 430-2006-00031X
Agency No. FNP-2005-0033
DECISION
Complainant filed a timely appeal with this Commission from the November
19, 2007 agency decision 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. � 2000e
et seq. The agency's decision implemented the September 26, 2007 decision
of the EEOC Administrative Judge (AJ) who found no discrimination.
At the time of events giving rise to this complaint, complainant worked as
a Business Community Liaison at the agency's Oconaluftee Job Corps Center
(OJCC) in Cherokee, NC. In her complaint, complainant alleged that:
1. The agency discriminated against her on the bases of national origin
(Native American) and sex (female) when: (a) on August 26, 2004, she
became aware of allegations accusing her of professional misconduct
involving Job Corps students; and (b) on November 3, 2004, she was denied
the opportunity to attend a Regional Managers Meeting.
2. The agency retaliated against her and/or subjected her to harassment
on the basis of reprisal for prior protected EEO activity when: (a)
on July 28, 2005, management denied her request to attend the Student
Government Association (SGA) Leadership Conference; and (b) on July 26,
2005, she became aware that management made derogatory comments about
her work performance.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation (ROI) and notice of her right
to request a hearing before an AJ. Complainant requested a hearing.
Over complainant's objection, the AJ issued a decision without a hearing
(summary judgment).
In his decision, the AJ found that the agency had not discriminated
against complainant. Regarding claims 1(a) and 1(b), the AJ found that
although complainant established that she was a member of a protected
group, she had not submitted sufficient comparative evidence to
support an inference of discrimination based on national origin or sex.
She therefore failed to prove a prima facie case. Assuming, arguendo,
that complainant established a prima facie case, the AJ found that the
agency had articulated legitimate, nondiscriminatory reasons for its
actions, and that complainant failed to prove that these reasons were
pretext for prohibited discrimination. Regarding claims 2(a) and 2(b),
the AJ found the agency's actions did not create an environment that
could reasonably be considered hostile or abusive, and therefore the
actions did not rise to the level of actionable harassment.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
A complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
We find that the AJ's grant of summary judgment was proper because there
exists no genuine issue of material fact. Assuming, without deciding,
that complainant has established a prima facie case, complainant has
nonetheless failed to show that the agency's articulated reasons for
its actions were pretext for unlawful discrimination. Regarding claim
1(a), the record reveals that the agency conducted an investigation of
complainant after co-workers sent an anonymous letter to agency management
alleging that complainant had engaged in unprofessional conduct, including
alcohol use with minors, at the 2004 SGA Leadership Conference. There is
no evidence that the agency management caused the allegations to be
made by the co-workers or that the allegations, which were ultimately
proven meritless, were made for prohibited reasons. Regarding claim
1(b), the record reveals that the Regional Managers meeting would have
been occurring while the internal investigation was still underway and
management appeared to have concerns about complainant representing the
OJCC at a regional meeting. Although complainant argues on appeal that
agency management had received the outcome of the investigation on or
around October 13, 2004, the record reflects that the final report of
the investigation was not disseminated to management until November 2,
2004, when the regional meeting had already begun.
Regarding claim 2(a), complainant argues that she was discriminated
against based on reprisal for prior protected EEO activity. Here,
the agency has articulated legitimate, nondiscriminatory reasons for
not sending complainant to the August 2005 SGA Leadership Conference.
Management selected the SGA Coordinator to attend the conference, who had
consistently worked with the students and the SGA and who had previously
attended a number of SGA conferences. Management believed her to be
better qualified to attend than complainant. Further, complainant had
only attended the previous year's SGA Leadership Conference as a stand-in
for her superior. Agency officials also stated that they wanted to avoid
a repeat of the events at the previous year's conference which had led to
the investigation of complainant. The record also reveals that attending
the conference was not part of complainant's job title or job description.
It was within the discretion of management to decide which employee to
send to the conference, so long as the exercise of discretion was not
based on prohibited discrimination.
Regarding claim 2(b), complainant stated that one of the reasons
management provided for not choosing her to attend the 2005 SGA
Leadership Conference was that complainant's work-based learning program
was suffering, and that the OJCC needed her on site during the time of
the conference to discuss ways to improve it. Complainant disputes the
fact that her program or her work were suffering. The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995).
To the extent that complainant is claiming a hostile work environment,
the Commission notes that unless the conduct is severe, a single
incident or group of isolated incidents will not be regarded as a claim
of discriminatory harassment. Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). Complainant has not shown that she was subjected to
an environment where the agency's actions were so severe and pervasive
that it altered the conditions of her employment. Also, the agency
has articulated legitimate, nondiscriminatory reasons for the tangible
employment actions in which it engaged.
Accordingly, the agency's decision is AFFIRMED.
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), 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
August 3, 2009
__________________
Date
2
0120080955
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080955