0120072443
06-26-2009
Tanya Baker, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Tanya Baker,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072443
Hearing No. 510-2006-00132X
Agency No. HS05TSA001679
DECISION
On April 26, 2007, complainant filed an appeal from the agency's March
22, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). 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 Transportation Security Officer in the agency's Miami, Florida
International Airport. Complainant asserts that she is an individual
with a disability due to ovarian cysts, permanent damage to her shoulder,
anxiety, tension, and depression.
Complainant stated that in July 2004, she applied for Family Medical
Leave to care for her disabled mother. According to the agency,
complainant failed to notify anyone that she was not coming into work.
That same month, the agency placed complainant in Absent without Leave
(AWOL) status, placed her on leave restrictions1, issued her a letter
of counseling, and issued her a letter of warning regarding attendance.
Complainant asserts that these acts were harassment.
Complainant stated that after having the aforementioned incidents with
her supervisors, she provided the agency with a letter dated September 4,
2004, from her psychiatrist, who described certain stressors associated
with her work environment, such as anxiety, tension, and depression.
Complainant further stated that in September 2004, she requested a
reasonable accommodation and asked that she be moved to a different
checkpoint location that had a different chain-of-command. In November
2004, complainant was told that she could not move because she was on
leave restriction.
Complainant's grandmother died on March 15, 2005, and complainant did
not return to work until April 4, 2005. The proper procedure for taking
leave would be for complainant to complete an OPM-71 form and provide it
to one of her first-line supervisors, who would give it to her second-line
supervisor. Complainant admittedly never submitted the form, and on March
30, 2005, received a letter notifying her that she was considered AWOL
and needed to report to work within 48 hours. Instead, complainant wrote
a letter saying she was not AWOL, and returned to work on April 4, 2005.
Complainant was subsequently suspended for three days.
In October 2005, complainant received a performance evaluation. She was
listed as "satisfactory" in all five critical elements, even though she
received an "unsatisfactory" for her attendance. Overall complainant
was rated as "met or exceeded expectations."
Complainant initiated EEO Counselor contact on September 23, 2005.
On April 10, 2006, complainant filed a formal complaint of discrimination
on the bases of disability (ovarian cysts, permanent damage to her
shoulder, anxiety, tension, depression, and her association with an
individual with a disability; her mother), and in reprisal for prior
protected EEO activity when:
1. In September 2004, her supervisor denied her request for a reasonable
accommodation;
2. On March 30, 2005, she was issued a letter that noted she had been
placed in Absent without Leave (AWOL) status for the period of March 15
to 30, 2005;
3. On July 6, 2005, she was notified that she would be suspended for a
three-day period, effective July 10, 2005;
4. On or about October 11, 2005, she received an evaluation in which
she was rated "unsatisfactory" for her attendance;
5. On July 7, 2004, she was charged as Absent Without Leave, placed on
leave restriction, and issued a Letter of Counseling;
6. On August 5, 2005, she was issued a proposed suspension; and
7. In December 2004, she was required to re-apply for leave under the
Family and Medical Leave Act.
Prior to an investigation, the agency dismissed claims 5-7 for untimely
EEO Counselor contact. 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 the complainant's
objections, the AJ assigned to the case granted the agency's September
20, 2006 motion for a decision without a hearing and issued a decision
without a hearing on February 2, 2007. The AJ found that complainant
failed to establish that she was an individual with a disability,
or that she was subjected to discrimination or harassment as alleged.
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.
Complainant now appeals to the Commission. On appeal, complainant
contends that the AJ failed to address reprisal in his decision.
We note that while the AJ did not address reprisal in his decision,
the error was harmless, as the record contains sufficient evidence for
us to adjudicate complainant's reprisal claim, as discussed below.
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 the AJ's issuance of a
decision without a hearing was appropriate. 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, she was given a comprehensive statement of undisputed facts,
and she had the opportunity to engage in discovery. On appeal complainant
asserts that a hearing is necessary because there are credibility issues
that can only be determined at a hearing. However, we find that, even
if we assume all facts in favor of complainant, a reasonable fact finder
could not find in complainant's favor, as explained below. Therefore,
no genuine issues of material fact exist.
Dismissed Claims
The agency dismissed claims 5, 6, and 7 for untimely EEO Counselor
contact. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11,
1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
The agency properly dismissed complainant's claims 5, 6, and 7 on the
grounds of untimely EEO Counselor contact. The record supports a finding
that complainant had actual or constructive notice of the time limit for
contacting an EEO Counselor, and that complainant reasonably should have
known of the discrimination more than 45 days prior to her EEO contact.
Therefore, complainant's April 5, 2005 EEO Counselor contact was
untimely.
Disparate Treatment and Harassment
Complainant alleges that she was subjected to discrimination and
harassment based on her disability, her association with someone with a
disability, and in reprisal for prior protected EEO activity when she was
placed in AWOL status, she was suspended for three days, and she received
an "unsatisfactory" rating in the attendance portion of her performance
evaluation. 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). She must generally establish a prima facie case by demonstrating
that she 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 United
States 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, 143 (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).
Assuming for the sake of argument that complainant established her
prima facie cases of discrimination and reprisal, the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
complainant continuously refused to follow the written instructions
she was given regarding her leave, such as requesting leave in writing.
As a result, complainant was placed on AWOL, suspended for three days,
and received an "unsatisfactory" in the attendance element of her
performance evaluation.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons were pretext
for discrimination and/or reprisal. Complainant asserts that even
though she was given written instructions that said she must request
leave in writing, she was given verbal instructions to the contrary.
The record establishes that complainant used a considerable amount of
leave in the years 2004 and 2005, and there were times when complainant
would fail to notify anyone that she was not going to come into work.
Further, the record establishes that complainant was aware she was on
leave restriction, and was aware of the specific procedure she had to
follow when she was requesting leave. The record further establishes
that complainant did not follow those specific procedures and, as a
result, was placed on AWOL status, suspended for three days, and her
attendance was reflected in her performance evaluation. Nothing in the
record indicates that discriminatory or retaliatory animus more likely
than not played a part in any of the agency's decisions. As a result,
we find that complainant failed to establish pretext.
To establish a prima facie case of hostile environment harassment,
a 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. Here,
the record does not indicate that complainant's disability or prior
protected EEO activity more likely than not played a part in any of the
agency's actions. Therefore, complainant failed to establish her prima
facie case of a hostile work environment.
Reasonable Accommodation
Complainant alleges that she was discriminated against when the
agency failed to reasonably accommodate her disability. Specifically,
complainant requested that she be moved to a different checkpoint under
a different chain-of-command because she experienced anxiety, tension,
and depression, which was caused by the alleged harassment from her
direct supervisors. As discussed above, complainant was not subjected
to harassment by her supervisors, as they articulated legitimate,
nondiscriminatory reasons for their actions, and complainant failed to
establish that these reasons were pretext for discrimination. We find
that complainant failed to establish that the requested reasonable
accommodation is linked to her disability. If complainant was moved to
a different position within a different chain-of-command, complainant
still would have been held to the same conduct standards and still would
have been subjected to the same incidents that caused complainant anxiety,
tension, and depression, such as the leave restrictions, AWOL, suspension,
and a lower performance appraisal. Therefore, we find that the agency
did not violate the Rehabilitation Act with respect to the requested
reasonable accommodation.
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 decision, because a preponderance of the evidence of record 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 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 26, 2009
Date
1 We note that employees who are placed on leave restrictions are
held to a higher standard in connection with tardiness, AWOLs, and
other attendance issues, as compared to employees who are not on leave
restriction.
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0120072443
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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