0120080691
03-25-2010
Elizabeth Hilton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Elizabeth Hilton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080691
Hearing No. 570-2006-00132X
Agency No. 200400472005100753
DECISION
On November 27, 2007, complainant filed an appeal from the agency's
October 18, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted 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) erred when she failed to
provide a copy of a notice of proposed summary judgment to complainant's
attorney.
2. Whether the AJ properly issued a decision without a hearing.
3. Whether the AJ properly found that complainant was not subjected to
reprisal or disability discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a fiscal accounting technician at the agency's Office of Finance in
Washington, D.C.1 On March 7, 2005, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of her disability
and in reprisal for prior protected EEO activity when:
1. On September 7, 2004, the agency denied her request to transfer to
another supervisor.
2. On November 1, 2004, the agency denied her request for advanced sick
leave; and,
3. In December 2004, she discovered that she did not receive a Performance
Award.
In an investigative affidavit, complainant stated that she asked
her second-line supervisor to reassign her to another office because
her first-line supervisor (supervisor) was "just constantly every day
picking, picking...." Exhibit B-1, p. 17. Complainant further stated
that management denied her request to be reassigned to another supervisor
because the office needed her to remain in her position because of its
heavy workload.
Complainant further stated that she did not know if any other employee
in her office had requested to be reassigned or if anyone under her
supervisor had a disability. When asked by the investigator why she
thought the denial of her request to be reassigned was based upon her
disability, complainant responded, "I don't have any idea." Exhibit B-1,
p. 24.
Complainant further stated that she submitted a letter requesting over
100 hours of advanced sick leave to her supervisor because of stress,
but management denied her request. Complainant also stated that when
she submitted her request, she had some annual leave but was not on the
leave donation list. Nevertheless, complainant stated that she took
the amount of leave that she needed from October 2004 until July 2005.
"I used up all my leave between 5 October [2004] and December of 2005,
and then I was put on the donor program for a little while," complainant
stated. Affidavit B-1, p. 31. Complainant stated that when she returned
to work in July 2005, she had a new first-line supervisor.
Complainant also stated that she felt that she should have received a
performance award in October 2004 because she has received awards from
most of her supervisors. Complainant alleged that everyone else in the
office received awards in October 2004.
Complainant's supervisor stated that complainant's request for a new
supervisor was granted when she returned to work on July 11, 2005.
She further stated that she denied complainant's request for advanced
sick leave because complainant exhausted sick leave, she does not approve
advanced sick leave, and complainant had a positive annual leave balance.
Nevertheless, the supervisor stated that she approved complainant for
a combination of annual leave, regular sick leave, leave without pay,
and donated leave from October 2004 until July 2005.
Complainant's supervisor further stated that in October 2004, six of
her nine employees received a monetary award because of activities
that they did during the year that were beyond their normal functions.
The supervisor stated that complainant did not receive an award because
she only performed her normal duties, which were "minimal at best."
Exhibit B-2, p. 28. She further stated that she gave complainant a
non-monetary Special Contribution Award in autumn 2005 because of her
work in the Regional Office.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On August 1, 2007, the AJ sent a notice of proposed
summary judgment to the agency and complainant but did not send the notice
to complainant's attorney. Neither party responded to the AJ's notice.
On September 28, 2007, the AJ issued a decision without a hearing in which
she found that complainant was not subjected to unlawful discrimination.
The agency subsequently issued a final order fully adopting the AJ's
findings.
CONTENTIONS ON APPEAL
In a brief statement on appeal, complainant maintains that the Commission
should vacate the AJ's decision because her attorney was not served with
the notice of proposed summary judgment, although the AJ was aware that
complainant was represented by counsel. Complainant further noted that
the agency informed her that it also did not receive the AJ's notice of
summary judgment. The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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").
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). 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).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact or
credibility existed.
Notice of Proposed Decision without a Hearing
With regard to complainant's contention on appeal that the AJ's
decision should be vacated because the AJ failed to send her attorney
a copy of the notice of proposed summary judgment, we note that the
acknowledgement order dated March 3, 2006 reflects that the AJ was
notified that complainant was represented by counsel. Yet, the AJ
failed to notify complainant's attorney of her intent to issue a decision
without a hearing. EEOC Regulations 29 � 1614.605(d) provides that when
a complainant designates an attorney as representative, service of all
official correspondence shall be made on the attorney and the complainant.
Upon review, we find that the AJ committed error, but that the error
did not affect the outcome of this case. In this regard, we note that
although having the opportunity to submit argument or evidence on appeal,
addressing the AJ's determination that there were no genuine issues of
material fact, complainant and her attorney failed to do so. Moreover,
we note that our own review of the record indicated that the AJ properly
found that there are no genuine issues of material fact here.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we assume arguendo that complainant is an individual
with a disability and established a prima facie case of reprisal and
disability discrimination. Nonetheless, we find that the agency provided
legitimate, non-discriminatory reasons for its actions, as detailed above.
Complainant contends that the agency denied her a reasonable accommodation
when it did not reassign her to another supervisor (until July 2005),
we note that a request for a reassignment to a new supervisor does not
constitute a request for reasonable accommodation. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, Question 33 (An employer does not
have to provide an employee with a new supervisor as a reasonable
accommodation).
Regarding claim 2, complainant's supervisor stated that she did not
approve complainant's request for advanced sick leave because complainant
had not exhausted her sick leave balance, and the supervisor had a
policy of not approving advanced sick leave. The record reflects that
the supervisor did approve complainant for a combination of accrued
sick and annual leave until about December 1, 2004, at which time
complainant's sick leave balance dropped to zero and her annual leave
balance fell to 32.5 hours. After complainant exhausted her sick and
annual leave balance, the agency approve complainant for leave without a
pay and donated leave, which it did until complainant returned to work
in July 2005. Thus, the agency granted complainant's leave request
through a combination of various types of leave.2
Regarding claim 3, the supervisor testified that complainant did
not receive an award because she only performed her normal duties,
which were "minimal at best." Complainant argues that she should have
received an award because she usually received an award in the past.
However, complainant is not entitled to receive awards in perpetuity
just because she received awards in the past. Complainant has not shown
how her work performance warranted an award. Consequently, we conclude
that complainant failed to provide any evidence from which a reasonable
fact-finder could conclude that the agency's explanations were pretext
for unlawful discrimination. Thus, we find that the AJ properly found
no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
____3/25/10______________
Date
1 Complainant retired from the agency on November 30, 2005.
2 To the extent that complainant's request for time off from work could
be deemed a request for reasonable accommodation, we find that the agency
effectively granted the request.
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0120080691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080691