0120103444
06-21-2012
Joan M. Tanaka, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Joan M. Tanaka,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120103444
Hearing No. 440-2008-00232X
Agency No. 2007-0062R05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 23, 2010 final order concerning Complainant's 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.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-14 Supervisory Environmental Protection Specialist in Region 5 in Chicago, Illinois. In her complaint, dated August 18, 2007, Complainant alleged that the Agency discriminated against her on the bases of race (Caucasian) and color (white) when:
1. On November 15, 2006, Complainant was placed in a dangerous situation with another co-worker resulting in her being assaulted, false statements being made against her, and her subsequent arrest by Federal Protective Services (FPS).
2. On May 7, 2007, and previously, all of her requests for an investigation into the incident of November 15, 2006 were denied.
3. On May 7, 2007, Complainant learned that she would not be compensated for legal fees and costs incurred as a result of the false statements and arrest on November 15, 2006.
After investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). While this matter was pending before the AJ, Complainant moved to amend her complaint, alleging that the Agency was discriminating against her on the basis of reprisal when:
4. The Agency denied her the opportunity to serve on 60-day details as Acting Branch Chief of the Innovation Systems and Technology Branch (ISTB) in the Superfund Division, although she was qualified to perform in the position.
5. The Agency provided misleading, irrelevant and unsubstantiated information and rebuttals to the Office of Workers' Compensation Programs (OWCP) regarding her workers' compensation claim for injury resulting from the November 15, 2006 incident.
Both parties requested a decision without a hearing (summary judgment). In his decision, the AJ first determined that although the Agency had properly dismissed the allegation of Complainant's arrest on November 15, 2006, on the grounds of untimeliness, he would address the issue because it formed the fundamental basis of the complaint. The AJ found further that although Complainant had established a prima facie case of discrimination based on race and color, Complainant had failed to show by a preponderance of the evidence that the Agency had discriminated against her. The AJ did not address claims 4 and 5 in his decision.
CONTENTIONS OF THE PARTIES
In her appeal, Complainant agreed that the AJ correctly found that she had established a prima facie case of discrimination. Complainant asserts, however, that the AJ erred when he failed to address her timely and unopposed motion to add retaliation to her complaint; issued summary judgment in favor of the Agency; found that the Agency articulated legitimate nondiscriminatory reasons for its actions and determined that Complainant had failed to prove discrimination by a preponderance of the evidence.
In its opposition to Complainant's appeal, the Agency urges that we affirm the Agency's decision but noted its disagreement with the AJ's finding that Complainant had established a prima facie case of discrimination. The Agency asserts that there are no genuine issues of material fact and; that Complainant has not demonstrated that the Agency discriminated against her; or that she was subjected to retaliation for engaging in protected activity. The Agency concedes that the AJ did not expressly address the retaliation claims but asserts that any error committed by the AJ was harmless and had no impact on the outcome of the case.
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 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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). An AJ should not rule in favor of one party without holding a hearing unless the AJ 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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
A complainant must initially establish a prima facie case by demonstrating that complainant 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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).
The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
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).
Complainant's Motion to Amend Complaint to Add Claims 4 and 5
The Commission first addresses claims 4 and 5. In his Acknowledgment and Scheduling Order (ASO), dated July 28, 2008, the AJ noted that Complainant could move to amend her complaint to add claims that were like or related to the original complaint. The ASO discloses that in order to amend the complaint, the Complainant was required to submit a motion within 30 days of the date of the ASO stating the new claim, the date(s) when it occurred (including beginning and ending dates), and why the claim was like or related to the original complaint. Absent a timely request to amend, the Complainant would be deemed to have waived all opportunity to amend by the AJ.
In her Motion to Amend, dated August 28, 2008, Complainant stated that because she filed a complaint, the Agency retaliated against her by denying her the opportunity to serve a 60-day temporary detail and temporary promotion as Acting Branch Chief of the Innovation Systems and Technology Branch in the Superfund Division, although she had expressed interest in the opportunity and was highly qualified to perform the duties of this position. Complainant also stated that in retaliation for filing her complaint, the Agency provided misleading, irrelevant and unsubstantiated information and rebuttals directly to the OWCP regarding her OWCP claim and the information provided by the Agency had a direct impact on the denial of her claim.
The Motion to Amend also reflects that the reason why Complainant did not previously amend her complaint to include retaliation was that she was unaware of the acts of retaliation. Complainant indicated in her Motion to Amend that she had recently received notification on August 22, 2008, that on August 18, 2008, the Superfund Division Director had extended the 60-day detail of the fifth selected Acting ISTB chief, eliminating her opportunity to serve in the promotional detail before a selection could be made. Complainant also indicated that on August 20, 2008, she received a letter that the Agency sent to OWCP which included misleading, irrelevant and unsubstantiated information regarding her alleged work injury.
The AJ could amend the complaint if he determined that the new claims were like or related to the original complaint. 29 C.F.R. � 1614.106(d). The Motion to Amend indicates that it was sent by facsimile and mailed to the AJ on August 28, 2008, which would have been within the time guidelines provided by the AJ in the ASO. Nonetheless, we find that the AJ's failure to rule on the requested amendment was harmless error. Here, Complainant can pursue claim 4 independently and the Agency can process the claim and, if appropriate, investigate it.2
Regarding claim 5, the Commission finds that it fails to state a claim. EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. The Commission has repeatedly held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994). The proper forum for Complainant to have raised her dissatisfaction with the processing of her workers' compensation claim is within that process. Further, it is well-settled that an agency has an obligation to controvert an employee's workers' compensation claim when there is a dispute as to an employee's entitlement. Hall v. Dep't of the Treasury, EEOC Appeal No. 01945595 (Feb. 23, 1995). We have previously held that where a complainant claims that the agency discriminated in a manner pertaining to the merits of the workers' compensation claim, for example, by submitting paperwork containing allegedly false information, then the complaint does not state an EEO claim. Olson v. U.S. Postal Serv., EEOC Appeal No. 01A44425 (Apr. 28, 2005). In support of this, Olson cited Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would have likely received. Such a claim is not allowed except in limited circumstances). Accordingly, claim 5 is denied.
Claims 1, 2, 3
The Commission finds that the grant of summary judgment in favor of the Agency was appropriate because there exists no genuine issue of material fact. We also find that the investigative record was adequately developed and that there were no findings of fact made by weighing conflicting evidence or assessing witness credibility.
Initially, the Commission notes that it will not address whether Complainant has established a prima facie case because such an inquiry may be dispensed with where, as here, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Regarding claim 1, the AJ noted in his decision that an incident, which he recounted in detail, occurred at work on November 15, 2006, involving Complainant and two African American union employees who were meeting together to screen employee applications for work-at-home, flexiplace options. An argument ensued involving pushing. It was disputed who pushed whom first. Complainant alleged that Employee-1 pushed her and Employee-1 alleged that Complainant pushed her. Employees 1 and 2 met with their union representatives and decided to report the incident to the FPS and file a complaint against Complainant. After Employee-1 filed a complaint, the FPS placed Complainant in custody. Once notified of the incident, Agency officials sought to resolve the matter with the FPS but the FPS refused to let Agency officials see Complainant. The FPS released Complainant to the custody of the Chicago Police Department for processing on the charge of simple battery against Employee-1. The Agency conducted an internal investigation of the incident which it completed on December 5, 2006. The Agency determined that it was impossible to tell which party was at fault in the November 15, 2006 incident and concluded that evidence was lacking to impose disciplinary action against any of the three. Complainant who had retained an attorney did not provide a statement but did indicate that she did not do what she was accused of. On January 24, 2007, when the charge was dismissed against Complainant for lack of evidence, Complainant provided information to the Agency regarding the incident of November 15, 2006, and wanted the investigation to be reopened.
The record reveals that Complainant did not initiate EEO Counseling until May 7, 2007. Accordingly, claim 1, was untimely because Complainant failed to initiate timely Counselor contact within the 45-day requisite time frame. Complainant has not provided any adequate justification to extend the time limitation period. "Waiting until one has proof of discrimination before initiating a complaint can result in untimely contact." Bracken v. U.S. Postal Serv., EEOC Request No. 05900065 (Mar. 29, 1990). The Commission has also consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. U.S. Postal Serv., EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S. Postal Serv., EEOC Request No. 05910291 (Apr. 25, 1991). Even were we to assume that Complainant made timely contact and we construe the evidence in a light most favorable to Complainant, Complainant has failed to show that the incident and her arrest occurred because of any discriminatory animus on the part of the Agency.
Regarding claim 2, the Commission finds that claim 2 is part and parcel of dismissed claim 1. In claim 1, Complainant is claiming the impropriety of her arrest on November 15, 2006. In claim 2, Complainant is requesting investigations concerning the incident on November 15, 2006 incident. Claim 2 arises from the November 15, 2006 incident. Even assuming that claim 2 states a separate and independent claim, the record discloses, and as set forth in the AJ's decision, that the incident was investigated by the Agency. There is no evidence that any alleged failure by the Agency to further investigate the incident at work was motivated by unlawful discrimination or subjected Complainant to disparate treatment. As noted by the AJ in his decision, Complainant declined to be interviewed by the Agency's investigator until after the disposition of the criminal trial and after the Agency had closed its investigation to provide her account of what had occurred. Here, even if the Agency reopened its investigation, there is no reason to believe that Employee-1 would admit that she assaulted Complainant. Complainant may be dissatisfied with the Agency's judgment not to reopen its investigation or discipline Employee-1 but the preponderance of the evidence does not establish discriminatory animus on the part of the Agency.
Similarly, claim 3 arises out of dismissed claim 1. In his decision, the AJ noted that the Agency supported Complainant's request to be reimbursed for legal fees but that the Department of Justice denied Complainant's request for reimbursement based on applicable regulations. As in claims 1 and 2, Complainant has not shown that the denial of reimbursement resulted from prohibited discrimination. Moreover, it was the Department of Justice that denied her claim and not the Agency.
To the extent that Complainant is also alleging discriminatory treatment by the Agency in allegedly ignoring her safety concerns about Employee-1, Complainant offers no evidence that it responded differently to her stated safety concerns than it did towards Employee-1. Neither is there evidence to indicate that Employee-1 sought Agency action to protect her from Complainant after the incident of November 15, 2006. Also, there is no evidence to indicate that Employee-1 posed any threat to Complainant and when Employee-1 was re-assigned to the area, it was a result of an Agency reorganization.
Review of the record as a whole and construing the evidence in a light most favorable to Complainant, we conclude that Complainant has failed to show that the Agency engaged in unlawful discrimination, subjected Complainant to disparate treatment, or that the Agency was motivated by discriminatory animus.
CONCLUSION
The 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
06/21/2012
__________________
Date
1 The Commission notes that the Administrative Judge's decision was issued on May 28, 2010, and that delivery to the parties was presumed to be within five days. Using the rebuttable presumption of receipt within five days of mailing, the Agency would have received the AJ's decision by Wednesday, June 2, 2010. Therefore, the Agency had 40 days from June 2, 2010 to issue its decision; otherwise, the AJ's decision becomes the final agency decision by operation of law pursuant to 29 C.F.R. � 1614.109(i).
2 Complainant should contact an EEO Counselor within 15 calendar days after she receives this decision, if she wishes to pursue claim 4.
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0120103444
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013