0120120885
05-25-2012
Linda Spivey, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Linda Spivey,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120120885
Hearing No. 420-2010-00195X
Agency No. HS09FEMA00309
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 27, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Inventory Management Specialist at the Agency's Emergency Housing Unit facility in Selma, Alabama.
On May 12, 2009, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII when:
1) in July 2007, management denied her the opportunity to earn overtime pay, even though management allowed male employees to earn overtime pay;
2) on or about August 2008, management demoted her from Lead Inventory Management Specialist to Inventory Management Specialist and placed a male in the Lead position;
3) on October 23, 2008, management falsely reported that she did not make the certificate list for a CORE Accountable Property Officer (APO) position, advertised under Vacancy Announcement Number (VAN) KAT -08-THU-7023-JAZ);
4) on or about December 20, 2008, management did not select her for a Cadre of On-Call Response/Recovery Employees (CORE) position as an APO;
5) on or about January 26, 2009, management denied her full access to the Logistics Information Management Systems database;
6) on or about February 6, 2009, she learned that management did not select her for one of the five Logistics Ground Support Specialist positions, advertised under VAN KA T-08-THU-70 l5-JAZ, while management selected five males who were less qualified; and
7) in April 2009, management removed her from APO training.
At the conclusion of the investigation into her claims, 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 requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On September 15, 2011, the AJ initially determined that the bulk of Complainant's claims (1 -5) were untimely. Notwithstanding, the AJ issued a summary decision finding that Complainant had not been the victim of a hostile work environment. In reaching this decision, the AJ determined that concerning Complainant's non-selection for the Ground Support positions, the Agency had articulated a legitimate, nondiscriminatory reason for Complainant's non-selection, i.e., it selected the candidates who had already been performing the functions and duties of the Ground Support positions so that it would not have to spend lime and resources training candidates who were inexperienced in performing the duties of the job. Regarding Complainant's contention that she was unlawfully removed from APO training, the AJ found that the available evidence does establish that Complainant engaged in prior EEO activity. Further, the evidence reveals that Complainant initially engaged in EEO activity on March 16, 2009. However, Complainant submits no evidence that she was actually removed from APO training, i.e., that she was subjected to an adverse action by the Agency, after she sought EEO counseling and filed a complaint of discrimination. In fact, Complainant asserted that she completed all of the four (4) certifications needed for the APO position. Additionally, there is no available evidence that the Agency's explanations for its actions were a pretext for discrimination.
In conclusion, the AJ found that the remaining events of which Complainant complains, either individually or collectively fail to rise to the level of unlawful harassment prohibited by Title VII. Most importantly, there is no evidence that any of the actions or decisions of Agency management were motivated by unlawful reasons. Complainant failed to establish that any of management's reasons for its actions were pretextual or unworthy of belief. Complainant failed to establish discrimination under either the theory of disparate treatment or unlawful harassment.
The Agency issued a final order adopting the AJ's decision and the instant appeal from Complainant followed. On appeal, Complainant asserts, inter alia, that the AJ improperly entered summary judgment in this matter. She further asserts that the AJ did not adequately address her claims of harassment.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no identified disputes of material fact.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) she belongs to a 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that appellant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. However, we find that Complainant has not shown that she was subjected to harassment in the form of unwelcome verbal or physical conduct involving her protected classes, or the harassment complained of was based on her statutorily protected classes. Further, Complainant has not shown that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. While Complainant has cited various incidents where Agency management took actions that were either adverse or disruptive to her, we find that Complainant fails to show that these incidents were as a result of unlawful discrimination. To the extent Complainant is alleging disparate treatment with respect to her claims, she has not shown that the Agency's articulated reasons for its actions were a pretext for discrimination.
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 (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
May 25, 2012
__________________
Date
2
0120120885
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120885