01a51157
10-12-2005
Ann P. Nichols, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ann P. Nichols v. Department of the Navy
01A51157
October 12, 2005
.
Ann P. Nichols,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51157
Agency No. 02-62793-015
Hearing No. 120-A2-1373X
DECISION
Complainant, a Quality Assurance Specialist, GS-1910-11, filed a formal
EEO complaint on October 26, 2001, in which she claimed that she had
been subjected to harassment in reprisal for her previous EEO activity.
The specific incidents cited by complainant are as follows:
1. On October 5, 2001, after Quality Assurance management informed
complainant earlier that she did not have permission to get into the
defects tracking system database, a signed request left on her desk
indicated she did have permission.
2. On October 1, 2001, Quality Assurance management confiscated a fax
addressed to complainant.
3. On September 17, 2001, complainant was issued a Letter of Caution
for unexcused or unauthorized absence.
4. On September 12, 2001, complainant received a memorandum from the
Division Manager canceling the Memorandum of Agreement dated December
20, 2000, for failure to provide adequate medical evidence for September
6, 2001.
5. On September 10, 2001, complainant was charged with being Absent
Without Leave (AWOL).
6. On September 6, 2001, complainant was informed that a female coworker
was being reassigned into a Quality Assurance Specialist position working
in an office setting for which she had indicated interest.
7. On August 17, 2001, complainant was chastised for spending too much
time working on an outstanding quality deficiency record and not spending
enough time doing shipboard work.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. Without holding a hearing, the AJ issued a decision finding
no discrimination. The AJ found that complainant failed to establish a
prima facie case of reprisal. According to the AJ, complainant failed
to establish that the adverse actions followed her protected activity
in such a time and manner as to raise an inference of retaliation.
With regard to complainant's claim of harassment, the AJ found that the
alleged incidents were isolated events and not indicative of any pattern
or conspiracy by the agency to demean, undermine or harass complainant.
The AJ stated that the alleged actions were neither severe nor pervasive,
and that most of them taken by themselves do not state claims under
Title VII. The AJ further stated that the time and attendance issues
emanated from legitimate concerns by the agency about complainant's
compliance with the Memorandum of Agreement.
The agency issued a final action on November 10, 2004, implementing the
AJ's decision.
On appeal, complainant contends that summary judgment was inappropriate
because material facts remain in genuine dispute and there are significant
issues of credibility to be determined, which can only be resolved by
the AJ after a full evidentiary hearing. Complainant maintains that
agency officials informed her that if she had a migraine headache or
diarrhea, it would be acceptable to have a note faxed in rather than
making an unnecessary visit to her physician's office. Complainant
argues that it was not the intent of the Memorandum of Agreement that
she provide a physician's note after visiting a physician's office,
since she may not visit her physician's office in connection with
each migraine headache or diarrhea episode. Complainant argues that
a dispute of material fact exists and therefore the AJ must view the
witnesses to assess their demeanor and credibility to resolve this issue.
Complainant maintains that a dispute as to material fact also exists
with regard to her non-selection. Complainant maintains that she was
not selected due to reprisal and that her qualifications were superior
to those of the selectee. Complainant claims that a dispute of material
fact exists as to the true reason for discontinuing her access to the
defect tracking computer software system. Complainant disputes the
Division Manager's position that she was discontinued from the system
because compartment acceptance and tank closure are areas not within
her duties and responsibilities. Complainant maintains that she did
perform such duties and her access was discontinued due to harassment
and reprisal. Complainant also claims that prior to October 4, 2001,
she was never relieved of working on the quality deficiency report.
Complainant argues that she was never told to transfer the quality
deficiency report file to anyone else and that the quality deficiency
report was not reassigned until October 4, 2001. With regard to her claim
of harassment, complainant contends that when viewed together, all of the
alleged actions were sufficiently severe to alter the conditions of her
employment and thus create a hostile work environment. As for the finding
that she failed to establish a prima facie case of reprisal, complainant
states that the Commission issued a decision in her favor in 2000 with
regard to her prior EEO complaint, one year prior to the incidents
at issue. Complainant argues that the retaliatory actions occurred
within a period of time so as to raise an inference of retaliation.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
the third of Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
As for complainant's claim of retaliatory harassment, we note that a
single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1129, 1138-1139 (D.C. Cir. 1985). Whether the
harassment is sufficiently severe to trigger a violation of the law
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993). In order to set forth a
prima facie case of reprisal, complainant must show that (1) she engaged
in a protected activity; (2) the agency was aware of her protected
activity; (3) subsequently, she was subjected to adverse treatment by
the agency; and (4) a nexus exists between the protected activity and the
adverse action. See Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd. 545 F.2d 222
(1st Cir. 1976).
We shall assume arguendo that complainant has established a prima facie
case of reprisal. The agency stated with regard to claim (1) that
complainant's access to the defect tracking system was removed because
only lead personnel were working with compartment and tank turnover,
and complainant was no longer working in that area. As for claim (2),
the agency stated that the Deputy of the Quality Assurance Department
appropriately picked up the fax, saw that it involved a quality deficiency
report on which complainant was no longer supposed to be working, and
discussed the fax with the Procurement Branch Head. According to the
agency, complainant was reassigned to Code 350 from her previous code
and it was determined that there was no value in her continuing to work
on a quality deficiency report from her former position. The agency
notes that claims (3) - (5) are closely related. According to the
agency, complainant's request for leave was denied because it was not in
accordance with the Memorandum of Agreement,<1> which required medical
documentation. The agency asserted that it was not the intent of the
Memorandum of Agreement that complainant could merely call her physician
and say she was sick. According to the agency, in light of the fact
that it had previously mistakenly approved a similar leave request from
complainant, it offered complainant a compromise whereby she would take
half of the time for September 6, 2001, as leave without pay, and the
other half as annual leave. The agency noted that complainant declined
this offer and that as a result she was charged with being absent without
leave. The agency stated that it revoked the Memorandum of Agreement
because it had been necessary to place complainant in an absent without
leave status. The agency explained that it issued complainant a Letter of
Caution for being absent without leave because agency regulations require
that the minimum penalty for an absence without leave charge be a Letter
of Caution. With regard to claim (6), the agency stated that the best
candidate was selected for the position at issue. With respect to claim
(7), the agency denied that it chastised complainant for working too much
on an outstanding quality deficiency report. The agency stated that
during a discussion of complainant's yearly performance, the Division
Manager instructed complainant not to spend time working on the quality
deficiency report for Code 313, her former code. We find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
We find that complainant has not established by a preponderance of the
evidence that the agency's stated reasons for its actions were pretext
intended to mask discriminatory intent. With regard to claims (3) -
(5), we observe that the Memorandum of Agreement states in relevant part
that leave without pay may be used at complainant's request for the next
365 calendar days for any medical condition requiring absence from work.
The agreement further states that medical evidence will be presented as
soon as possible, once leave is requested, and that medical evidence will
be signed by a physician or practitioner. Additionally, the Agreement
stated that it is a one time means for complainant to be able to repay
advanced sick leave, while at the same time allowing her to rebuild her
sick leave balance, thus hopefully preventing the necessity of having to
request advanced sick leave in the future. Based on the language of the
Memorandum of Agreement, we find that it is clear that complainant was
required to obtain medical documentation when she needed to utilize the
leave addressed in the Memorandum. Therefore, we find that the agency
acted reasonably when it denied complainant's leave request, which was
submitted without complainant actually seeing her physician. Complainant
does not deny that the agency made a compromise offer with regard to the
use of leave for September 6, 2001. In light of complainant's refusal
of that offer, we find that the agency acted reasonably when it charged
complainant with being absent without leave and when it issued her a
Letter of Caution. Complainant has not demonstrated that the agency's
apparently reasonable actions were motivated by retaliatory intent rather
than the reasons cited by the agency.
With regard to claim (6), complainant has not established that her
qualifications for the position at issue were so superior to those of
the selectee as to warrant a finding that the agency's stated reasons are
pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The agency stated that the selectee was recommended for the Quality
Assurance Specialist position because she was one of four Quality
Assurance Specialists in the Quality Assurance Department that received a
sustained superior performance award in 2001. The agency further stated
that the selectee volunteered for projects and her performance, quality
deficiency reports and audits were superb. With respect to claims (1),
(2) and (7), when considered together, we find that these incidents are
not sufficiently severe so as to constitute a hostile work environment.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 12, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Memorandum of Agreement is not an EEO settlement agreement.