0120140360
09-22-2016
Sherril W.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherril W.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120140360
Hearing No. 480-2010-00601X
Agency No. SF-09-0844-SSA
DECISION
On October 26, 2013, Complainant filed an appeal from the Agency's final action 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant timely raised her dissatisfaction with the processing of the instant complaint; (2) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (3) whether Complainant established that the Agency subjected her to harassment on the bases of sex (female), disability (posttraumatic stress disorder, anxiety, depression), age (54), and reprisal for prior protected EEO activity (a prior complaint initiated on December 10, 2008, filed on February 26, 2009, and withdrawn on August 4, 2009; the instant complaint) in connection with several incidents from August 2009 to January 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-8 Senior Case Technician (SCT) at the Agency's Office of Disability Adjudication and Review (ODAR), San Diego Hearing Office, in California. Complainant's first-level supervisor was the Group Supervisor (S1 - male, disability status unknown, 37). Complainant's second-level supervisor was the Hearing Office Director (S2 - female, disability status unknown, 54).
On August 31, 2009, Complainant contacted an EEO Counselor. On October 28, 2009, Complainant filed an EEO complaint alleging that, beginning in August 2009, the Agency subjected her to harassment on the bases of sex (female), disability (posttraumatic stress disorder, anxiety, depression), age (54), and reprisal for prior protected EEO activity (a prior complaint initiated on December 10, 2008, filed on February 26, 2009, and withdrawn on August 4, 2009; the instant complaint) consisting of the following incidents:2
1. After she requested unscheduled, same-day annual leave in lieu of sick leave for August 12, 2009 and August 20, 2009, S1 required her to provide additional medical documentation, disapproved her leave requests, and charged her as absent without leave (AWOL). She felt that she had provided sufficient medical documentation in connection with her leave requests.
2. On August 26, 2009, after she inquired about her delayed within-grade increase (WGI), S1 sent her two emails she felt were condescending, insulting, and rude:
a. "I have received your inquiries today about your AWOL balances and something about a pay grade increase. Your voice messages were incoherent and I am unclear what you are asking. Your time is better spent working up cases instead of calling me frequently throughout the day regarding such matters. You have worked up less than 1 case per day this month. You have already wasted enough Agency time this month."
b. "Step increases are delayed when there is unpaid leave. You had a substantial amount of LWOP from January 2007 - January 2009. No fix is warranted."
3. In a September 14, 2009, "Management Directive and Warning" memorandum, S1 stated that her use of email was excessive and inappropriate and her behavior was discourteous, unprofessional, and disrespectful. She felt that the memorandum consisted of vague, opinion-based situations taken out of context, including her efforts to get answers to valid questions.
4. In an October 30, 2009, performance appraisal for the October 2008 - September 2009 appraisal period, S1 gave her a Level 3 - Successful Contribution summary appraisal rating and a 3.0 Element Average rating. She felt that her performance deserved an award.
5. On January 13, 2010, despite having previously informed him that she did not like closed-door meetings with management in the absence of a representative of her choice or permission to tape-record the meeting, S1 insisted that she attend a closed-door meeting. She felt that the closed-door meetings were held to aggravate and sicken her, because he knew they made her extremely uncomfortable.
6. S1 gave her vague directions and orders about her work assignments.
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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's April 4, 2011, motion for a decision without a hearing and issued a decision without a hearing on September 10, 2013. The AJ's decision concluded that Complainant did not prove that the Agency subjected her to harassment as alleged.3 When the Agency did not issue a final order within forty days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i). Complainant then filed the instant appeal. We will address Complainant's contentions on appeal below.4
STANDARD OF REVIEW
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), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ'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 EEO MD-110, Ch. 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 the Commission "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
Complainant's Dissatisfaction with the Processing of her EEO Complaint
A complainant must raise any dissatisfaction with the processing of her complaint before the AJ issues a decision on that complaint, the agency takes final action on the complaint, or either the AJ or the agency dismisses the complaint. EEO MD-110, Ch. 5, � IV.D. No concerns regarding improper processing raised after a decision will be accepted by the agency, the AJ, or OFO. Id.
On appeal,5 Complainant argues that the Agency improperly interfered during the investigation of the instant complaint by replacing the original affidavits of S1 and S2 with new affidavits after she had rebutted the original affidavits. In addition, Complainant argues that the Agency did not provide her with adequate EEO counseling on new issues that arose after October 2009.
Upon review of the record, we find that Complainant did not timely raise her dissatisfaction with the processing of the instant complaint. Specifically, there is no evidence in the record that Complainant raised her concerns regarding improper processing before the AJ issued her September 10, 2013, decision without a hearing. Accordingly, we decline to address those concerns on appeal.
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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue 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 allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. 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.
Harassment - Sex, Disability, Age, Reprisal for Prior Protected EEO Activity
As an initial matter, we note that Complainant, on appeal, discussed numerous other incidents from December 2008 to February 2011 that she believed were retaliatory. We emphasize that those incidents are outside the scope of the instant complaint and we decline to address them on appeal.
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class or engaged in prior protected EEO activity; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class or prior protected EEO activity; (3) the harassment complained of was based on their statutorily protected class or prior protected EEO activity; (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/or was sufficiently material to deter protected EEO activity in the given context; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II.B.3 (Aug. 25, 2016) (Retaliation Guidance).
Upon review of the record, we find that Complainant did not establish a claim of harassment. Specifically, the evidence in the record is insufficient to support a finding that S1's conduct was based on Complainant's sex, disability, age, or reprisal for prior protected EEO activity.
Regarding incident 1, S1 averred that he charged Complainant as AWOL because she did not submit adequate medical documentation in compliance with a January 26, 2009, leave counseling memorandum he had issued her. We find that the documentary evidence in the record supports S1's explanation. The memorandum stated, in pertinent part, the following: (i) Complainant had a problematic pattern of leave and attendance, including a repeated use of unscheduled leave; (ii) should she request unscheduled, same-day leave based on illness, she was required to submit medical documentation containing a diagnosis, a reason why the diagnosis prevented her from working, and a prognosis; (iii) unapproved absences would result in an AWOL charge; and (iv) if her problematic pattern of leave and attendance was related to a disabling condition, she had a right to request a reasonable accommodation. Complainant, however, did not provide the required medical documentation to support her unscheduled absences on August 12, 2009 and August 20, 2009. For August 12, 2009, Complainant submitted a "Work Status Report" from her doctor that simply stated: "This patient is placed off work from 8/12/2009 through 8/12/2009." For August 20, 2009, Complainant submitted a "Work Status report" from her doctor that simply stated: "DIAGNOSIS: ARM PAIN . . . This patient is placed off work from 8/20/2009 through 8/20/2009." On appeal, Complainant argues that the memorandum was discriminatory. We note, however, that the memorandum was not part of the instant complaint and there has been no previous finding that it was discriminatory.
Regarding incident 3, S1 averred that he issued the September 14, 2009, "Management Directive and Warning" memorandum to Complainant because of her inappropriate conduct.
We find that the documentary evidence in the record supports S1's explanation. In the memorandum, S1 provided numerous examples of Complainant's inappropriate verbal and written conduct including the following: (i) she printed out his August 20, 2009, email about overtime availability, circled a portion of the email, wrote "Substandard English. You supervise writers. I have serious concerns about your ability to write," and put the printed email in his mail box; (ii) she wrote in an August 19, 2009, email to management, "I have what I consider to be the first or second worst supervisor I have ever [had] in close to 40 years of employment anywhere. You all should be interested in changing this from such a dysfunctional office as it is and not so busy ruining my life. Be satisfied and enjoy that my life i[s] completely ruined by your mean-spirited and evil treatment . . . ;" (iii) she wrote in a September 9, 2009, email to management: "REPORTS ARE DONE BY NOW AREN'T THEY? You never answered my questions about the reports I do have and you haven't provided this additional report you said you would provide and you are assigning cases haphazardly. I have to show the screw-ups to [another supervisor] because you[] don't know what you are supervising . . ." On appeal, Complainant argues that S1 issued the memorandum after he received a September 11, 2009, order in her Federal Labor Relations Authority (FLRA) case. We find, however, that Complainant's FLRA case does not constituted protected EEO activity because the record contains no evidence that it involved the EEO laws. See generally Retaliation Guidance, � II.A.
Regarding incident 4, S1 averred that Complainant did not receive an award because, although she did good quality work, she had deficiencies in two of the four ratings elements ("interpersonal skills" and "achieves business results"). As to "interpersonal skills," S1 averred that Complainant showed difficulty with personal skills and difficulty communicating appropriately with others. As to "achieves business results," S1 averred that Complainant did not do her fair share of work compared to her colleagues; she was producing under two cases per day during part of the rating period whereas her colleagues were producing two or more cases per day. We find that the documentary evidence in the record supports S1's explanation. The performance appraisals and performance discussions dated October 30, 2008, July 2, 2009, August 18, 2009, and October 30, 2009, reflect that S1 had concerns about Complainant's communication and productivity. We note that the only other SCT supervised by S1 (female, disability status unknown, 55, no prior protected EEO activity) also did not receive an award. Although Complainant felt that her performance deserved an award, we note that her disagreement with S1's assessment of her performance does not show that his motivations were discriminatory.
Regarding incident 5, S1 averred that Complainant mentioned she did not like closed-door meetings with management but that he, like all managers, routinely had closed-door meetings with employees to allow for privacy. As to January 13, 2010, S1 averred that he asked Complainant to come to his office for a meeting about AWOL but that she refused to remain for the meeting and left his office in an angry manner. On appeal, Complainant argues that S1 conducted the January 13, 2010, meeting after he received a January 12, 2010 inquiry from the EEO Office about the instant complaint. We find, however, that the record contains no evidence that the meeting was connected to the inquiry from the EEO office.
Regarding incidents 2 and 6, assuming that they occurred as alleged, we find that the record contains no evidence that they were based on Complainant's protected classes.
Based on the above, we conclude that Complainant did not establish her claim of harassment on the bases of sex, disability, age, or reprisal for prior protected EEO activity.
CONCLUSION
Complainant did not timely raise her dissatisfaction with the processing of her EEO complaint. The AJ's issuance of a decision without a hearing was appropriate. Complainant did not establish that the Agency subjected her to harassment on the bases of sex, disability, age, or reprisal for prior protected EEO activity in connection with several incidents from August 2009 to January 2010. Therefore, 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 action finding that Complainant did not establish harassment as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
___9/22/16_______________
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.
2 For purposes of clarity, we have renumbered and rephrased the incidents based on Complainant's affidavit testimony, Complainant's deposition testimony, Complainant's opposition to the Agency's motion for a decision without a hearing, and the documentary evidence in the record.
3 The AJ noted that Complainant did not file a motion to amend her complaint to allege a claim of denial of reasonable accommodation.
4 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations (OFO) within 30 days of filing the notice of appeal. OFO granted Complainant an extension until December 27, 2013 to submit a statement or brief. The record reflects that Complainant submitted supporting statements on November 26, 2013, December 28, 2013, and January 6, 2014. We decline to consider the supporting statements submitted on December 28, 2013 and January 6, 2014, as they were untimely filed.
5 On appeal, Complainant also raised her dissatisfaction with the processing of a prior complaint and a subsequent complaint. Because this appeal does not involve those other complaints, we decline to them at this time.
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