0120102652
09-28-2010
Gloria Oxley, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Gloria Oxley,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102652
Hearing No. 430-2008-00005X
Agency No. ARFTEUST08JAN00048
DECISION
On June 9, 2010, Complainant filed an appeal with this Commission from the Agency's April 15, 2010 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Recreation Assistant with the agency in Fort Eustis, Virginia.
Complainant alleged that the Agency discriminated against her by subjecting her to a hostile work environment on the basis of reprisal for prior protected activity when:
1. In July 2007, a co-worker threatened to put toilet water in her cup.
2. In July 2007, Complainant was required to continue working with a co-worker who had threatened to put toilet water in her cup.
3. On October 12, 2007, Complainant found a magazine with sexual content at the front desk.
4. In November 2007, Complainant was given a letter or proposed suspension in which her Supervisor accused her of making a false statement relative to the October 12, 2007 incident.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ issued a decision without a hearing (summary judgment) on the Agency's unopposed motion for summary judgment. 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.
Regarding claims 1 and 2, the AJ noted in her decision that Complainant's statement that during a conversation with co-worker-1 in July 2007, co-worker-1 told her that she had previously contemplated harming Complainant by putting toilet water in Complainant's drinking water. The AJ noted further that Complainant stated that despite informing management and the police about what co-worker-1 said, the Agency required that she continue working with co-worker-1.
Regarding claims 3 and 4, the AJ noted that Complainant stated that in October 2007, she discovered a dirty magazine in her work area and after reporting the incident to her Supervisor, she was issued a notice of proposed suspension.
The AJ concluded that Complainant failed to establish that she was subjected to discrimination regarding the four incidents. The AJ found that Complainant failed to show that any of the reasons given for the actions were pretextual and motivated by retaliatory animus.
The AJ noted that the allegations were conclusory with no evidence of discriminatory animus. The AJ found that Complainant had not shown that her co-workers were aware of any prior EEO activity. The AJ noted that Complainant herself had conceded that she and her co-worker had a volatile working relationship but not because of a protected activity. The AJ also found that the magazine that was placed in a communal desk drawer was clearly happenstance and not directed toward Complainant for having engaged in EEO activity.
Regarding management's handling of claims 1 and 3, the AJ noted the statement of Complainant's Supervisor in which he stated that he questioned co-worker-1 and counseled her and determined that the two employees could continue to work together without incident until new staff was in place. Regarding claim 3, the AJ noted that the Supervisor stated that she counseled co-worker-2 regarding the incident. Regarding claim 4, the AJ noted that Complainant was issued proposed discipline because she was insubordinate when she failed to follow orders and provided incorrect and misleading information about the magazine incident.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when the AJ 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 be resolved only 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.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or reprisal is unlawful if it is sufficiently patterned or pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two types of harassment: (1) harassment that results in a tangible employment action; and (2) harassment that creates a hostile work environment.
For harassment to be considered conduct in violation of the regulations that the Commission enforces, it must be pervasive or severe enough to significantly and adversely alter the conditions of the employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated from the standpoint of a reasonable person, taking into account the particular context in which it occurred. Unless the conduct is very severe, a single incident or group of isolated incidents will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Because this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. �1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the grant of summary judgment was proper. Complainant has failed to proffer sufficient evidence to establish that a genuine issue of material fact exists such that a hearing on the merits is warranted. Specifically, the Commission finds that the investigative record was adequately developed; there were no genuine issues of material fact; and there were no findings of fact made by weighing conflicting evidence or assessing witness credibility. A complainant cannot avoid summary judgment by resting on bare assertions, general denials, conclusory allegations or mere suspicion. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48.
Further, construing the evidence in a light most favorable to Complainant, Complainant has not shown that the actions of the co-workers resulted from retaliatory animus because of prior EEO activity or that the Agency's conduct was motivated by discrimination or that the reasons articulated by the Agency for its actions were mere pretext to hide unlawful discrimination.1 Proving pretext requires that the complainant show that discriminatory reasons more likely motivated the agency, or that the agency's proffered explanations are not credible. Complainant's bare assertions are not sufficient. The Commission has consistently held that mere assertions are not enough to establish pretext. Richardson v. Department of Agriculture. 03A40016, (December 11, 2003).
Regarding the existence of a hostile work environment, the Commission finds that Complainant's allegations do not rise to the level of a discriminatorily hostile work environment. Complainant has not shown that the incidents were so severe so as to have altered the conditions of her employment and Complainant has not shown that the agency actions were motivated by discrimination.
CONCLUSION
The Agency's finding of no discrimination is AFFIRMED.
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
September 28, 2010
__________________
Date
1 Complainant sought EEO counseling in December 2006 alleging that she was denied a reasonable accommodation to work part-time.
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0120102652
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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