0120140204
08-19-2016
Winfred C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Winfred C.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140204
Hearing No. 520201300245X
Agency No. 200H06892012102404
DECISION
On October 5, 2013, Complainant filed an appeal from the Agency's August 30, 2013, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge properly issued a decision without a hearing finding that Complainant had not shown that the Agency discriminated against him in reprisal for protected EEO activity when it subjected him to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Lab Technician at the Agency's Veterans Affairs Medical Center in West Haven, Connecticut. On March 12, 2012, Complainant contacted an EEO manager (EEOM) to report harassment by one of his supervisors (S1). Although S1 was in Complainant's chain of command, his first line supervisor was S2. On March 27, 2012, Complainant initiated EEO counseling, and filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male),2 and in reprisal for contacting the EEOM when it subjected him to a hostile work environment when:
1. On March 7, 2012, S1 accused him of not doing his job, creating and ignoring an instrument issue and stated, "you people could not work anywhere else but here and I bet if I look at the problem log, I'll see that you ignored this earlier during your ICU Ward runs;"
2. On March 7, 2012, S1 stepped over him on the way to the "sister" instrument, and told a colleague that she found him "scampering to run samples;"
3. On March 8, 2012, S1 overwhelmed him with samples he was scheduled to run, thereby preventing him from: a) cleaning up at 7:50; b) going to the bathroom; c) cleaning up with the Chemistry Lead Tech; d) performing 'CAP' tasks; and e) made him look like a liar before all staff peers;
4. On March 9, 2012, S1 ordered him to write an incident report following a repeat request by a nurse;
5. On March 28, 2012, S1 slammed a wash bottle on his desk, verbally abused him, and threw paperwork at or in front of his computer while he was on a phone call; and
6. On April 9, 2012, S1 distorted the facts of his earlier 2 hours of work by suggesting he was "just sitting at the 'COAG' bench," although he had been working.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on August 2, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The AJ found that four out of the six incidents occurred prior to Complainant's EEO contact on March 27, 2012. Additionally, in looking at claims 5 and 6, the AJ found that Complainant had not demonstrated that the complained of conduct was sufficiently severe or pervasive to constitute retaliatory harassment. In her decision, the AJ cited Banks v. Dep't of Health and Human Services EEOC Appeal No. 01940526 (February 16, 1995), where the Commission found that a supervisor slamming down a file, and raising his or her voice while belittling an employee was not sufficient to constitute harassment based on race or in reprisal. While the AJ noted that Complainant provided evidence, such as coworker statements claiming that Complainant was the target of unprofessional behavior, he did not show that there were any material facts in genuine dispute. As such, the AJ found summary judgment in favor of the Agency.
On August 30, 2013, the Agency issued a final order adopting the AJ's decision. Complainant filed the instant appeal with a brief in support of his appeal, which he revised on November 8, 2013. The Agency provided a response on December 26, 2013, requesting that the Commission affirm its final order.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that there are material facts in genuine dispute. Specifically, Complainant alleges that he contacted the EEO office on September 14, 2011, and in February 2012; and that the AJ erroneously assumed that "March 28, 2012" was the date of his initial EEO contact. Additionally, Complainant notes that emails from his supervisor, S2, to S1's supervisor, S3, show that S1 was aware of his complaints.
Complainant also argues that item 3 on page one of the AJ's decision is incorrect due to a typographical error; the investigator did not interview his named witnesses; the picture provided by S1 for claim 2 is misleading; and that S1 is threatened him by questioning his military leave.
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), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge'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 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").
ANALYSIS AND FINDINGS
As an initial matter, this decision will not address Complainant's claim that the Agency discriminated against him when S1 threatened him by questioning his military leave because the Commission cannot address an issue raised for the first time on appeal.
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 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).
On appeal, Complainant argues that the date that the AJ used as his initial EEO contact is erroneous. Complainant states that he contacted the EEO office in September 2011, and in February 2012; however, he has not provided any evidence in support of his assertions. Complainant also stated that he contacted the EEOM on March 12, 2012. The record contains an email chain between Complainant and the EEOM, which supports Complainant's assertion. However, we note that this is not a material fact because claims 1 through 4 occurred prior to Complainant contacting the EEOM on March 12, 2012, and as such, S1's actions could not have been in reprisal for his contact with the EEOM. While the record contains an email from S2 to S3 complaining of S1's conduct, it was sent on April 12, 2012, also after the complained of conduct. As such, we find that the AJ did not err in finding that claims 1 through 4 occurred prior to any protected EEO activity.
In regards to Complainant's assertion that there is an error in item 3 on page one of the AJ's decision due to a typographical error, he has not specified what information is incorrect, and as such, we find that he has not established that there are material facts in genuine dispute, and that the AJ properly issued a decision without a hearing.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
As discussed above, we found that Complainant did not establish a prima facie case of reprisal discrimination for claims 1 through 4, and as such, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that those actions taken by S1 were motivated by his prior EEO activity. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
For claim 5, S1 stated that the reagent bottle was heavy, and that it made a noise when she placed it on the table. S1 also stated that she did not throw any paperwork, but did move some papers so that she could place the reagent bottle down. S1 denied making the statement in claim 6; however, even assuming that she had, we find that the alleged harassing conduct in claims 5 and 6 did not have the purpose or effect of unreasonably interfering with Complainant's work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the Agency discriminated against him on the basis of reprisal for protected EEO activity when it subjected him to a hostile work environment.
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 order adopting the AJ's finding that Complainant had not shown that the Agency discriminated against him on the basis of reprisal for protected EEO activity when it subjected him to a hostile work environment.
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
_8/19/16_________________
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 On August 29, 2012, the Agency notified Complainant that it was accepting his allegation of discrimination on the basis of reprisal only. On September 10, 2012, Complainant responded to the notice of partial acceptance to provide additional information for two of the incidents, but did not address the fact that the Agency did not accept his discrimination claim based on sex.
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