0120093083
02-04-2011
Amelia Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Amelia Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120093083
Hearing No. 532-2008-00051X
Agency No. 4B-140-0036-07
DECISION
On July 23, 2009, Complainant filed an appeal from the Agency's July
9, 2009, 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly issued
a decision without a hearing in which she found that complainant had not
established that she had been discriminated against or harassed based
on her race, color and age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Occupational Health Nurse at the Agency's Rochester Processing
and Delivery Center (P&DC) (the facility) in Rochester, New York.
On August 20, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against and harassed her on the bases of race
(African-American), color (black), and age (67) when:
1. from March 2007 and continuing, the Occupational Health Nurse
Administrator instructed co-workers to monitor Complainant's reports,
and to report back her mistakes;
2. on an unspecified date, Complainant was threatened with Fitness for
Duty exams;
3. on June 25, 2007, Complainant was accused of making mistakes;
4. Complainant was not paid Administrative Leave for her absence for
August 2, 2007.
On August 31, 2007, the Agency issued a Letter of Partial Acceptance /
Partial Dismissal of Complainant's complaint, in which it dismissed
issues 1, 2, and 3 for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). On September 13, 2007, Complainant disputed the Agency's
dismissal of these issues. The Agency declined to revise its dismissal
decision.
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.
On March 21, 2008, the Agency submitted a Motion for Findings and
Conclusions without a Hearing. On April 10, 2008, Complainant submitted
her response to the Agency's Motion, in which she argued that she
had proven her claim of harassment. On May 8, 2008, the AJ issued a
determination that the Agency had improperly fragmented Complainant's
claims by dismissing issues 1, 2, and 3, and granted the Agency leave to
file a motion for summary judgment on the previously dismissed issues.
The Agency filed a Motion for a Decision without a Hearing on issues 1,
2, and 3 on May 9, 2008.
The AJ issued a decision without a hearing on July 2, 2009. In her
decision, the AJ found that a decision without a hearing was appropriate
on all issues, as no material facts were in dispute, and no issues
of credibility needed to be determined in order to reach a decision.
The AJ found that Complainant, an Occupational Health Nurse, worked
Tour 3 (4:00 p.m. through 12:30 a.m.) at the facility, and was the only
Nurse assigned to that tour. Complainant's supervisor (S1) worked on
the day tour, and was primarily stationed in Buffalo, New York; hence,
she was generally not on site where Complainant performed her duties.
Taking Complainant's allegations to be true, the AJ found that Complainant
failed to establish a prima facie case of discrimination based on her
race, color or age. Although she is a member of the claimed protected
classes, the AJ found that Complainant did not present evidence of
similarly-situated employees who had been treated more favorably, as
her comparison employees worked on a different Tour. However, the AJ
assumed for argument's sake that Complainant had established a prima
facie case of discrimination, and noted that the Agency had presented
legitimate, nondiscriminatory reasons for its actions. Primarily with
regard to issue 4, in which Complainant claimed that she was not paid
Administrative Leave time for her absence of August 2, 2007, upon her
return to work from a one-month medical leave, the Agency presented
documentation that Complainant was granted Annual Leave for that date,
as she chose not to report back to work after her clearance until August
3, 2007. The AJ found that Complainant had not shown any evidence that
the Agency's decision on the type of leave she was granted was pretext
for discrimination.
The AJ also concluded that Complainant had not established a prima
facie case of harassment based on her age, race and color, as she had
not shown that she had been subjected to actions sufficiently pervasive
so as to alter her conditions of employment. The four incidents cited
in her complaint, taken as a whole, were found to be insufficient
to establish a hostile work environment, and Complainant had not
presented any evidence of discriminatory motive on the part of S1.
Although Complainant had attempted to present a discriminatory motive
on the part of her co-workers, the AJ found that the actions of the
co-workers were also insufficient to create a sufficiently severe or
pervasive hostile working environment. The AJ concluded that Complainant
had not established that she had been discriminated against or harassed.
On July 9, 2009, 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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not submit any argument in support of her appeal.
The Agency submitted a brief in opposition to Complainant's appeal in
which it urged the Commission to affirm the AJ's decision, and the
Agency's implementation of that decision. The Agency also disputed
the AJ's finding that issues 1, 2, and 3 should be considered in the
analysis, arguing that it had properly dismissed those issues and that
Complainant should have filed a motion to amend her complaint before
the AJ to include those issues.
STANDARD OF REVIEW
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
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 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").
ANALYSIS AND FINDINGS
Decision without a hearing
We must first 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. 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);
Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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).
In the instant case we find that the AJ's decision to issue a decision
without a hearing was appropriate. The AJ viewed the evidence in the
light most favorable to Complainant when considering Complainant's
allegations and the nature and severity of the incidents of harassment
in her complaint. There was no need to resolve issues of credibility,
as the parties generally agreed on the facts of each incident.
Hostile work environment
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their 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 to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6
(Mar. 8, 1994).
We first find that the AJ properly reversed the Agency's dismissal of
issues 1, 2, and 3, finding that the Agency had improperly fragmented
Complainant's complaint. Complainant clearly intended to file a complaint
of hostile work environment harassment, and the incidents cited were her
evidence in support of her claim. With respect to the Agency's argument
that Complainant was required to amend her complaint before the AJ to
include partially dismissed issues, our regulations do not require such
an amendment. Rather, under 29 C.F.R. � 1614.107(b), determinations
of partial dismissal are reviewable by an AJ if a hearing is requested,
as in this case. Therefore, the dismissal of those issues was properly
reversed and the issues were properly considered by the AJ.
We next note that Complainant does not put forth evidence, other than
her own speculation, as to the motivation of Agency officials in taking
the actions at issue in the instant complaint. However, even taking
Complainant's speculation to be true, we find that the actions of S1 and
of Complainant's co-workers, as a whole, do not rise to the level of being
so severe or pervasive that a hostile work environment can be found.
We do not find that Complainant has shown that she was subjected to a
hostile working environment based on her race, color or age.
CONCLUSION
Based on a thorough review of the record and the contentions of the
Agency on appeal, including those not specifically addressed herein, and
in the absence of contentions on appeal from Complainant, we AFFIRM the
agency's final order, which implemented the AJ's finding that Complainant
was not discriminated against as alleged.
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
February 4, 2011
Date
2
0120093083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093083