0120161283
05-22-2018
Yael S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yael S.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120161283
Hearing No. 480-2012-00327X
Agency No. 11-00243-01751
DECISION
On February 6, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 11, 2016, 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., 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.
ISSUES PRESENTED
Whether Complainant was subjected to disparate treatment, a hostile work environment and reprisal as the result of a number of actions, including: a Letter of Reprimand; a one-day suspension; being ordered to leave the Human Resource office on the day she was serving her one-day suspension; a personal item on her desk was destroyed; and not being selected to a Human Resources Assistant position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant, GS-0203-05 at the Agency's Marine Corps Recruit Depot facility in San Diego, California. On May 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (49) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when:
1. The Agency issued a Letter of Reprimand (LOR) to her on February 16, 2011;
2. The Agency issued her a one-day suspension on April 14, 2011 (effective April 20, 2011);
3. The Agency's Human Resource specialist ordered her to leave the Human Resource office the day she was serving her one-day suspension (April 20, 2011) under penalty of discipline;
4. A personal item on her desk was destroyed on February 23, 2011;
5. The Agency did not select her for the Human Resources Assistant position (MIL/OA) GS-0203-6, RPA# 11ARPSWPFN00243020256 (effective date May 8, 2011); and,
6. She was subjected to a hostile work environment.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections and opposing motions, the AJ assigned to the case granted the Agency's July 13, 2012, motion for a decision without a hearing and issued a decision without a hearing on November 18, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The investigative record shows that Complainant was working at the Recruit Administration Branch (RAB) of the facility since her initial hiring, and had been transferred to the Service Record Book Department of the RAB in September of 2009. Complainant's first level supervisor, S1, testified that at the time of the alleged discriminatory events, Complainant had established a history of confrontations with her co-workers over things such as how loud they played their music and her dislike of the attitude of one of her younger co-workers (W), whom Complainant believed did not speak to her in a sufficiently respectful manner. As a result thereof, S1 directed Complainant to come to him first, before confronting her co-workers. The February LOR was issued after Complainant confronted W instead of following S1's directive.
The subsequent one-day suspension resulted from Complainant's failure to take sufficient efforts to assist a recruit who had come to the RAB. The Assistant Director, Chief Warrant Officer (CWO), of the RAB intervened when Complainant informed the recruit that he needed a different type of assistance than RAB provided and attempted to send the recruit away. When CWO intervened to try to assist the recruit, Complainant continued to interrupt CWO and insisted that the recruit needed another type of assistance, without fully investigating the needs of the recruit.
With respect to her encounter at the human resources office when trying to deliver information related to her complaint, Complainant testified that the human resources specialist was very loud and rude in telling her that she was not permitted to be at the facility while serving her suspension. Complainant believed that the specialist's actions were based on harassment and reprisal for her participation in the EEO process, but offered no evidence to support her claim.
Regarding claim 4, and the destruction of a bobble head pen on her desk, no evidence was presented to show who was responsible. However, when Complainant reported the incident to management, the RAB Director gave a verbal admonishment to the staff to respect the property of others and S1 sent out an email reiteration this to the staff.
Finally, the record shows that the selectee to the Human Resources Assistant position for which Complainant applied, was chosen as a priority placement under a disability reasonable accommodation, and not a discriminatory action against Complainant.
CONTENTIONS ON APPEAL
Among a number of things on appeal, Complainant references incidents of inappropriate conduct, profanity and insults by colleagues. Additionally, she disagrees, in general, with the AJ's finding that there were no genuine issues of material fact in this case, and expresses her belief that she should have had a full hearing. The Agency reiterates that the AJ properly granted its motion for a decision without a hearing, and the subsequent finding of no discrimination.
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").
ANALYIS AND FINDINGS
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 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).
Upon review of the record, we find that there are no genuine issues 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, and she was given the opportunity to respond to such a statement. 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.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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 Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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 Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that the Agency did not subject Complainant to disparate treatment on the bases of age or reprisal for prior protected EEO activity as the result of any of the Agency's alleged discriminatory actions. First, assuming, arguendo, that Complainant established a prima facie case on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions.
With respect to the LOR, the record shows that Complainant was advised by S1 not to confront her coworkers and that if she had a concern she should come directly to him first. Complainant did not follow this directive. Similarly, the one-day suspension was issued because it followed the LOR and numerous admonitions to Complainant about being argumentative and disruptive. When Complainant failed to aid a recruit, whom had requested assistance at the RAB, S1 considered her actions a second offense and issued what he believed to be the appropriate discipline.
We further find that while the human resources specialist, who allegedly spoke to Complainant and threatened to have her removed from the facility for being at the human resources office while she was serving her one-day suspension, may not have been tactful in his interaction with Complainant, there is no evidence to show that he was acting beyond his authority or with discriminatory animus.
Beyond the instant claims of discrimination, Complainant failed to offer sufficient evidence of prior EEO activity to support any of her claims based on reprisal.
Based on the above, we conclude that Complainant did not establish her claim of disparate treatment on the bases of age or reprisal for prior protected EEO activity.
Hostile Environment Harassment
To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to 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 his statutorily protected class; (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 (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been "sufficiently severe or 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). 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, at 6 (Mar. 8, 1994).
In the instant matter, we find, under the standards set forth in Harris, that Complainant's claim of hostile work environment must fail. A finding of hostile work environment involving Complainant's claims is precluded by our determination that Complainant failed to establish that any of the Agency's actions were motivated by age or reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
The AJ's issuance of a decision without a hearing was appropriate. Complainant did not establish that the Agency subjected her to discrimination on the bases of age or reprisal for prior protected EEO activity as a result of the claims set forth herein. 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 finding that Complainant did not establish discrimination as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__5/22/18________________
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.
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