0120091610
08-26-2010
Cynthia Council, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Cynthia Council,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120091610
Hearing No. 430-2008-00107X
Agency No. P20070151
DECISION
On February 19, 2009, Complainant filed an appeal from the Agency's January 15, 2009, 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. The Commission deems the appeal timely and accepts it for de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
(1) Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in favor of the Agency.
(2) Whether Complainant met her burden of establishing that she was subjected to a hostile work environment (sexual harassment).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Cook Supervisor at the Agency's Federal Correctional Institute facility in Butner, North Carolina. On January 23, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on November 13, 2006, her supervisor detained her in his office for approximately one hour and forty-five minutes and inquired about her personal information using an unauthorized questionnaire.
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 assigned to the case granted the Agency's April 16, 2008, motion for a decision without a hearing and issued a decision without a hearing on December 3, 2008.
AJ Decision1
The AJ found that on November 13, 2006, Complainant's Supervisor (S1) began working in his new position. That afternoon, he met with the entire staff and told them that he wanted to meet with each of them individually. At S1's request, Complainant met with him later that day. S1 asked Complainant, as well as the other female and male employees, the following 13 questions:
1. Name
2. Where are you from?
3. Children (names)
4. Previous Employment, Military experience
5. Hobbies
6. Volunteer Activities
7. Special skills
8. How long have you been with the Agency?
9. Describe yourself
10. Your motivation
11. Who do you most admire (professionally)? & why?
12. Long Term Goals
13. What are your plans after retirement?
The AJ noted that Complainant claimed that she felt the questions were too personal, did not relate to her job performance, and were "not right." Complainant also did not like the fact that S1 wrote down her responses. She explained that she was not comfortable with the questions because she had already been hired and because she did not "chit-chat" about personal matters at work. Further, Complainant stated that she was married and felt that the questions asked were not something she should discuss with S1.
The AJ noted that, according to Complainant, she expressed her concerns and feelings during the meeting with S1, however, he told her to "relax" and "unwind" since food service was a "very stressful" area. Complainant also noted that S1 told her that he wanted to make sure that she was "okay" every day and that he wanted to talk to her every day, either on the floor or in his office. This caused Complainant to worry that his conduct with her was going to escalate. The AJ further noted that in her affidavit, Complainant indicated that S1 answered each of these thirteen questions about himself as well.
Complainant stated, "I felt that the questions were leading to a desire for him to want to have sex with me, to be with me, and I did not want that . . . . He was basically using his position of authority over me in an attempt to mentally tear me down to convince me to become involved with him intimately."
Complainant complained to Agency officials, and as a result, management referred her to an Employee Assistance Program (EAP) counselor for assistance. In addition, Complainant requested and took approved leave for an unspecified amount of time. On November 17, 2006, the Agency referred Complainant's claim of unprofessional conduct/sexual harassment to the Office of Internal Affairs (OIA), and OIA deferred the matter for local investigation. The Special Investigative Agent investigated the matter and later concluded that the charges were not substantiated. Nevertheless, S1 was subsequently required to undergo sensitivity training, and was moved from Complainant's supervision.
The AJ then found that Complainant could not establish a claim of a hostile work environment (sexual harassment). While the AJ found that the questionnaire was not authorized by the Agency or the union and included questions that were personal and not work-related, Complainant did not show that she was subjected to unwelcome verbal conduct of a sexual nature. The AJ further noted that there is no evidence that Complainant was held against her will. The AJ also found no basis for imputing liability to the Agency, noting that once Complainant reported the alleged offensive conduct, the Agency acted promptly to correct it. Consequently, the AJ found no discrimination. 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.
CONTENTIONS ON APPEAL
Complainant raises no new arguments on appeal. The Agency asks the Commission to affirm the final order.
ANALYSIS AND FINDINGS
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). After a careful review of the record, the Commission finds that the AJ's decision referenced the appropriate regulations, policies, and laws. Moreover, we find that the AJ properly issued a decision without a hearing because Complainant failed to show that a genuine issue of material fact exists or that there were any credibility determinations such that a hearing on the merits is warranted.
Harassment
We now address Complainant's allegation of harassment. To establish a claim of harassment a employee must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The incidents must have been "sufficiently severe or pervasive as 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 (March 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the Agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Upon review, the Commission concurs with the AJ's determination that Complainant failed to establish that she was subjected to a hostile work environment. Even if the events of November 13, 2006 occurred exactly as Complainant contends, we find that Complainant did not show that S1's conduct, although clearly unwelcome, was of a sexual nature. Likewise, we do not find that S1's conduct was severe or pervasive enough to have altered the conditions of Complainant's employment and that it created an abusive working environment.
CONCLUSION
After a careful review of the record, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
______8/26/10____________
Date
1 The AJ noted that although Complainant previously raised additional claims of discrimination/retaliation, in her February 7, 2008 pleadings, she indicated a desire only to pursue the instant claim.
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0120091610
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091610