01A41780
06-16-2004
Karen C. Pyrcz, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Karen C. Pyrcz v. Department of Veterans Affairs
01A41780
June 16, 2004
.
Karen C. Pyrcz,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A41780
Agency No. 97-1764
Hearing No. 160-2004-00048X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that during the relevant time, complainant was a
Vocational Rehabilitation Specialist, GS-12, at the Medical Center,
located in Bedford, Massachusetts. In her formal complaint, filed on
June 12, 1997, complainant alleged that she was discriminated against
on the bases of sex (female), age (D.O.B. 3/18/52), and in reprisal for
prior EEO activity (arising under Title VII) when between September
1996 and June 1997, she was subjected to a hostile work environment.
Complainant also alleges that she was subjected to ongoing verbal abuse
of a sexual nature in January and February 1997.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The AJ concluded that complainant failed to establish a
prima facie case of harassment because she failed to establish that any
of the alleged harassing incidents were based on complainant's membership
in a protected class. The AJ found that complainant's workplace suffered
from poor morale, jealousy and incivility among the staff, particularly
toward complainant; however, there is no evidence in the record that these
allegations of hostility were based on complainant's sex, age or were in
reprisal for prior protected EEO activity. The AJ noted that complainant
alleged that she was subjected to verbal abuse of a sexual nature by
the Accounting Technician (AT), that she described as �intimidating� and
�threatening.� The AJ found that complainant failed to show that AT's
behavior was motivated by her sex. The AJ further found that even if
the behavior were based on complainant's sex, complainant acknowledges
that management acted promptly when she reported AT's conduct toward her.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting it, under a de
novo standard of review. 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 for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110"), at 9-16 (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, legal analysis, including on the ultimate issue
of whether intentional discrimination occurred, and on the legal issue
of whether any federal discrimination employment statute was violated.
See id. at 9-15.
ANALYSIS AND FINDINGS
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
To establish a prima facie case of hostile work environment harassment,
complainant must show that: (1) she belongs to statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (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.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998).
The Commission concludes that the issuance of a decision without a
hearing was appropriate, as no genuine dispute of material fact exists.
We conclude that complainant presents no evidence that she was singled
out for this treatment because of her protected classes. The record
does not support a finding that complainant was subjected to physical
or verbal conduct based on her sex, age or in reprisal. We conclude
that complainant has not �set forth specific facts showing that there
is a genuine issue for trial.� Fed. R. Civ. P. 56(e). Therefore, for
the foregoing reasons, we affirm the agency's final order adopting the
AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 16, 2004
__________________
Date