0120113516
09-20-2013
Daisy Peralta, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Daisy Peralta,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113516
Hearing No. 570-2010-00664X
Agency No. 09-00264-01142
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's April 29, 2011 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.
At the time of events giving rise to this complaint, Complainant worked as a Graphic Artist, NF-1020-2, at the Agency's Marine Corps Community Services Henderson Hall, Marine Corps Exchange, in Arlington, Virginia. Complainant's First Level Supervisor was the Retail Manager (S1 - Caucasian).
On June 5, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race (Asian/Filipino) and reprisal for prior protected EEO activity (February 2009 EEO Counselor contact in instant complaint) when:
1. In July 2008, S1 told her in a loud voice in front of her coworkers that she was denied leave for October, November, and December 2008;
2. On October 6, 2008, a coworker (CW1 - Caucasian) yelled at her and S1 failed to take appropriate action after she reported it;
3. On October 20, 2008, S1 required her to sign in and out using a log book to account for her time when the Time Collection Device (TCD) was not working;
4. On December 24, 2008, S1 denied her a break;
5. On May 8, 2009, S1 disapproved her request for annual leave for the period of December 21, 2009 to January 15, 2010; and
6. On February 13, 2009, S1 denied her the opportunity to use the 59-minute rule.
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the EEOC Administrative Judge (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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact. The record has been adequately developed, Complainant was given notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement,1 and she had the opportunity to engage in discovery. 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.
Hostile Work Environment Harassment
Upon review, we find that Complainant failed to establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the incidents complained of were based on her race or prior EEO activity.
Regarding incident 1, Complainant averred that S1 did not mention her leave when they discussed a task in S1's office, but said to her loudly in the presence of her coworkers as soon as they stepped out of the office, "About your leave, you cannot take off on October, November, and December." Although S1 did not remember the incident, she averred that November and December were restricted dates for leave due to the retail store's busy holiday season. On appeal, Complainant recounted the incident and argued that S1 spoke to her "in a harsh manner." Even assuming that the incident occurred as Complainant alleged, we find no evidence in the record that that the unwelcome verbal conduct by S1 was based on Complainant's race or prior EEO activity.
Regarding incident 2, Complainant averred that CW1 swore at her in front of her coworkers when she hesitated to give CW1 some sign holders. Complainant did not specify what words CW1 used, but CW1 averred that she told Complainant to "keep the damn sign holders." On appeal, Complainant recounted the incident and argued that CW1 had no excuse to treat her disrespectfully. Even assuming that the incident occurred as Complainant alleged, we find no evidence in the record that the unwelcome verbal conduct by CW1 was based on Complainant's race or prior EEO activity.
Regarding incident 3, S1 averred that she required Complainant to sign the log book when the TCD was not working. In addition, S1's Administrative Assistant averred that all non-exempt employees, including Complainant, were asked to sign the log book when the TCD was not working. On appeal, Complainant argued that S1 did not require her coworkers (CW2 - Caucasian, CW3 - African-American, CW4 - African-American) to sign the log book. The record, however, contains evidence that Complainant's coworkers were required to sign the log book. For example, the log book entry for December 4, 2008 contains the signatures of both Complainant and CW3.
Regarding incident 4, the undisputed record reflects the following: (a) in a December 11, 2008 email to employees, S1 requested that, during the December 12-24, 2008 period, employees work on the selling floor from 11:00 a.m. to 1:00 p.m. and take lunch breaks starting at
1:00 p.m.; (b) on December 24, 2008, S1 saw Complainant upstairs in the office between 11:00 a.m. and 1:00 pm getting food from the refrigerator; and (c) S1 asked Complainant to return to the selling floor. Complainant, without mentioning specific dates, averred that S1 allowed her coworkers to eat in the office anytime they wanted to. The record, however, contains no evidence that S1 gave Complainant's coworkers such flexibility during the December 12-24, 2008 period referenced in the email.
Regarding incident 5, S1 averred that she disapproved Complainant's leave request because the requested dates were restricted dates for leave due to the retail store's busy holiday season. In addition, S1 averred that she later approved Complainant's request for five weeks of leave during April and May 2010 because the requested dates were not during the restricted timeframe. In her affidavit and on appeal, Complainant argued that a Warehouse Manager (CW5 - African-American) supervised by S1 took leave during the restricted dates. However, the record contains no evidence that, even if CW5 took leave during the restricted timeframe, the amount of leave was comparable to the two full weeks requested by Complainant.
Regarding incident 6, the record reflects that the Agency authorized employees to use the
59-minute rule on February 13, 2009, thereby allowing them to leave 59 minutes before the end of their scheduled shifts. Complainant requested that S1 credit her for 59 minutes of administrative leave because she left one hour early on February 13, 2009. S1, however, only credited Complainant with 0.50 hours of administrative leave for February 13, 2009 and averred that she did so because Complainant had already worked 39.5 hours that week. On appeal, Complainant argued that the Agency credited her coworkers with one hour of administrative leave for the 59-minute rule but only credited her with 0.50 hours. The record, however, contains evidence that the Agency limited the 59-minute rule for employees so that their hours did not exceed 40 hours per week after the administrative leave was credited. For example, Complainant's timesheet reflects that she worked 39.5 hours that pay period and was credited 0.50 hours of administrative leave for February 13, 2009, for a total of 40 hours. Similarly, CW4's timesheet reflects that she worked 39.25 hours that pay period and was credited 0.75 hours of administrative leave for February 13, 2009, for a total of 40 hours.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Commission finds that the AJ's decision without a hearing was appropriate, as there is no genuine issue of material fact. Furthermore, it is the decision of the Commission to AFFIRM the Agency's final order because the preponderance of the evidence does not establish that race or reprisal discrimination occurred.
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
_9/20/13_________________
Date
1 Complainant did not file an opposition to the Agency's motion.
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0120113516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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