0120092257
06-17-2010
Sharon Leon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sharon Leon,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092257
Hearing No. 541-2008-00225X
Agency No. 2003-0741-2007
DECISION
On May 7, 2009, Complainant filed an appeal from the Agency's April
28, 2009 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 Program Support Assistant at the Agency's Health Administration Center
(HAC) in Denver, Colorado. EEO Counselor's Report.
Complainant filed an EEO complaint dated August 20, 2008, alleging
that she was discriminated against on the bases of race (White), sex
(female), disability, age (over 40), and in reprisal for prior protected
EEO activity when:
1. On May 14, 2007, Complainant was issued a notice requiring a Fitness
for Duty Examination (FFD);
2. On July 17, 2007, the Agency issued Complainant a notice requiring
a Fitness for Duty Examination; and
3. On July 3, 2007, the Agency suspended Complainant for one day.1
In an October 31, 2007 Notice Of Partial Acceptance, the Agency
dismissed issue 1 on the grounds that Complainant raised the same
claim that was previously raised before the Agency in Agency Case
No. 2003-0741-2007102966. Additionally, the Agency determined that
issues 2 and 3 did not appear to be a pattern of abusive conduct or
language and did not rise to a level sufficiently severe or pervasive
to constitute harassment. The Agency stated issues 2 and 3 would be
analyzed as discrete acts under a disparate treatment analysis.
Complainant filed amendments on her complaint from October 22, 2007,
through November 27, 2007, alleging that she was discriminated against
based on race (White), sex (female), disability, age (over 40), and in
reprisal for prior protected EEO activity when:
4. Complainant was sexually harassed when:
a. On October 1, 11, 12. 18, 2007, Complainant was repeatedly asked by
Person A and her first-line supervisor (S1), if she was having sex or
wanted to have sex with Person B (Person A's husband), and other related
questions concerning Person B; and
b. On November 13, 2007, S1 called Complainant into his office and stated
that Person A said Complainant was a "whore" and was asking to be raped.
The Agency accepted the amended sexual harassment claim. The Agency
proceeded to investigate issues 2, 3, and 4. 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.
Over Complainant's objections, the AJ granted the Agency's Motion for
Summary Judgment and issued a decision without a hearing on April 8,
2009. The Agency subsequently issued a final order fully implementing
the AJ's finding that Complainant failed to prove that she was subjected
to discrimination as alleged.
In his decision, the AJ noted that the Chief of Human Resources (HR)
stated Complainant was sent for a FFD due to Complainant's behavior and
work performance. The AJ noted that the Agency stated that the type of
behavior complained of was Complainant constantly asking HR personnel and
management about her employment status and if she was going to be fired.
The Agency noted that although Complainant was repeatedly reassured
that her job was not in jeopardy, she continued to ask whether she
was going to be terminated. The AJ noted that S1 stated Complainant
was given the FFD for disruptions in the workplace, behavior issues,
and inappropriate communication with others. S1 noted that disruptions
took the form of interruptions too all employees through the facility.
S1 explained that Complainant obsesses about certain issues and then
sends numerous electronic mail messages, makes numerous telephone calls,
and then visits management personnel.
With regard to issue 3, the AJ stated that Complainant was suspended
for continually calling a contract official and attempting to have
Person X terminated. Specifically, the AJ noted that on March 23,
2007, Complainant called Talent Tree from her work phone and identified
herself by a name other than her own and stated she wanted to make sure
Person X was terminated because she was filing a discrimination complaint
against Person X. The AJ noted Complainant was suspended for improperly
impersonating a co-worker, causing disruption in the workplace, and
making false and unfounded comments which could be considered slanderous
or defamatory about a co-worker. The AJ noted Complainant admitted she
called the vendor and stated she did not need authorization or permission
to make the call.
With regard to issue 4, the AJ noted that Complainant alleged that S1
continuously told her that Person B was getting a divorce and what was
said about Complainant. The AJ noted that Complainant admitted there
were no witnesses to the allegation that S1 told her Person A called
Complainant a "whore" and was asking to be raped. The AJ noted that
Complainant also alleged that Person B sent her an electronic mail message
calling her a "whore" and stating that she was going to be raped. The AJ
noted that S1 and Person A denied that the repeatedly asked Complainant
if she was having sex or wanted to have sex with Person B or that Person
A called Complainant a "whore" and was asking to be raped.
The AJ found Complainant failed to show the Agency's articulated
legitimate, non-discriminatory reasons were a pretext to mask intentional
discrimination. The AJ determined Complainant failed to establish by
a preponderance of the evidence that she was discriminated against as
alleged.
ANALYSIS AND FINDINGS
At the outset, we note Complainant does not challenge the Agency's
partial dismissal of issue 1 or the Agency's decision that issues 2 and
3 were discrete acts of discrimination and we find no basis to disturb
the Agency's decision to dismiss issue 1 and to analyze issues 2 and 3
as discrete acts.
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 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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he 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. U.S. Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We find summary judgment was properly issued in the present case as the
record was fully developed and there were no genuine issues of material
fact in dispute. The Commission finds that the Agency articulated
legitimate nondiscriminatory reasons for its actions. Specifically,
with respect to issue 2, the Agency noted Complainant was given a FFD
for disruptions in the workplace, behavior issues, and inappropriate
communication with others. With regard to issue 3, the Agency stated
Complainant was issued a suspension for calling a vendor from her work
phone, identifying herself by a name other than her own, and stating
she wanted to make sure Person X was terminated because she was filing
a discrimination complaint against Person X. We find Complainant
failed to show that the Agency's actions were a pretext for prohibited
discrimination. Moreover, with regard to complainant's claim of sexual
harassment, we find Complainant has not established, by a preponderance of
the evidence, that she was subjected to inappropriate sexual harassment.
CONCLUSION
Accordingly, the Agency's final order finding no discrimination 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
June 17, 2010
__________________
Date
1 The record reveals the suspension issued was a three-day suspension;
however, two of the days occurred over the weekend when Complainant was
not working.
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0120092257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092257