01a52160
07-15-2005
Barbara J. Campbell, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration) Agency.
Barbara J. Campbell v. Department of Homeland Security
01A52160
July 15, 2005
.
Barbara J. Campbell,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration)
Agency.
Appeal No. 01A52160
Agency No. I-02-WO12
Hearing No. 340-2002-03744X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 complainant is an Applications Clerk in the
agency's Immigration and Naturalization Service office in Los Angeles,
California. Complainant filed a formal EEO complaint on October 29, 2001,
alleging harassment and discrimination based on race (African-American),
national origin (African-American and Native American), sex (female), age
(D.O.B: Oct. 1, 1943), religion (Baptist), disability, and in reprisal
for prior EEO activity (arising under Title VII) when:
in April 1992, complainant became aware that her Official Personnel File
(OPF) did not contain annual work performance appraisals for the period
1987 to 1992;
between 1994 and 1995, and again in 1996, complainant was subjected to
religious proselytizing by her supervisor;
in 1997, complainant was charged with 30 minutes of annual leave
subsequent to attending an in-house office function;
on March 5, 1997, complainant's supervisor attempted to send her home
because she allegedly committed a dress code violation;
in 1998, her supervisor conducted a meeting in which her removal from
the work unit was discussed;
in late 1999, she was verbally admonished not to sit on office furniture;
on October 4, 2000, her supervisor wrote inaccurate information on
complainant's Time and Attendance sheet;
in May 2000, her supervisor filed assault charges against complainant
with the Los Angeles, California Police Department (LAPD). As a
consequence, on May 11, 2000, a LAPD detective questioned complainant
in her office;
on January 13, 2001, a Supervisory Applications Clerk repeatedly
approached complainant for work-related information;
on March 7, 2001, she was subjected to inappropriate or otherwise
unprofessional physical contact by a co-worker;
on March 23, 2001, her friend was admonished for being on INS property;
on March 23, 2001, she was subjected to a verbal altercation with a
Supervisory Applications Clerk;
on March 27, 2001, her supervisor commented that she felt threatened
by complainant;
between 1995 and 2001, overtime opportunities in her work unit were
administered in a disparate or inequitable manner;
between 1999 and 2001, offers of assistance with daily work assignments
for employees in her work unit were made in a disparate or inequitable
manner;
on May 22, 2001, complainant's second line supervisor advised her
first-line supervisor to challenge or question her request for 80 hours
of advanced sick leave;
on June 8, 2001, a Supervisory Applications Clerk advised complainant
in an offensive or unprofessional manner not to submit work to her,
as she is not complainant's supervisor;
on June 18, 2001, complainant became aware that the District Director,
Los Angeles District, California, denied her request for 80 hours of
advanced sick leave;
on June 18, 2001, a Supervisory Applications Clerk verbally admonished
her for allegedly disrupting other employees with non-work related
conversation;
on July 18 and 19, 2001, the Acting Special Assistant to the District
Director, Los Angeles District, California, questioned or challenged
the authenticity of medical documentation complainant was submitting
in connection with her request for advanced sick leave;
on July 25, 2001, a contract investigator asked complainant if she was
a male;
on August 1, 2001, a Supervisory Applications Clerk advised her in an
offensive or unprofessional manner that she needed the chair on which
she was sitting. Complainant alleged that other chairs were available
at the time;
in October 2001, complainant became aware that her OPF did not contain
annual performance appraisals for the rating periods of April 1995 to
March 1996, April
1996 to March 1997, and April 1997 to April 1998.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On September 29, 2004, an AJ issued a decision without a
hearing pursuant to 29 C.F.R. 1614.109(g)(3), finding no discrimination.
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 a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition.
With regard to the harassment claim, the AJ found that the complainant
failed to establish sufficient evidence to create an environment which
was hostile and interfered with her job performance in a severe or
pervasive manner. As to disparate treatment discrimination, the AJ
concluded that complainant failed to establish a prima facie case of race,
national origin, sex, age, disability, religion, and reprisal (for prior
EEO activity) discrimination. The AJ determined that even if complainant
had established a prima face case of discrimination, the agency's actions
were explained through legitimate, non-discriminatory reasons, such as
Office of Workers' Compensation Programs contacting the former supervisor
only because she was named as the person who caused the harm alleged to
be a work-related injury. Additionally, the AJ found that the agency met
its burden of demonstrating prompt and effective action in response to
complainant's original complaint, by removing the offending supervisor
from her chain of command and directing that there be no more contact.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in finding no discrimination and
erred in disapproving three of complainant's witnesses. Complainant also
disagrees with the AJ's conclusion that there is no evidence that the
agency's actions were a direct cause of her medical stress condition.
We note that complainant raises this issue for the first time on appeal.
Consequently, we will only address the claims raised in her complaint.
With respect to the first nine claims, the agency concluded untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2), and also
found that these claims were not part of a continuing violation because
complainant reasonably suspected discrimination more than 45-days before
she initiated EEO Counselor contact. The Supreme Court has held that
a complainant alleging a hostile work environment will not be time
barred if all acts constituting the claim are part of the same unlawful
practice and at least one act falls within the filing period. See
National Railroad Passenger Corp. v Morgan, 122 S. Ct. 2061 (June 10,
2002). The Court further held, however, that �discrete discriminatory
acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.� Id. Finally, the Court held
that such untimely discrete acts may be used as background evidence in
support of a timely claim. Id. We find that claims (1) through (9)
all concern discrete incidents outside the limitations period and agree
with the agency that complainant reasonably suspected discrimination more
than 45-days before she initiated EEO Counselor contact. Even considering
the alleged incidents of harassment involving complainant's supervisor as
background evidence, we find these incidents are not severe or pervasive
enough to support a claim of harassment.
We now turn to the claims of harassment that were timely. To establish
a prima facie case of harassment, complainant must show the existence
of four elements: (1) she is a member of 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 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); 29 C.F.R. �1604.11. In the instant
case, complainant alleged several incidents of harassment including
unwanted physical contact by a co-worker, repeated unprofessional and
offensive conduct by a Supervisory Applications Clerk, being asked if she
was a male, and her friend being admonished for being on INS property.
The Commission determines that complainant has not presented sufficient
evidence to support her harassment claims. Specifically, we conclude
that complainant has not established that she was subjected to harassment
so severe or pervasive so as to alter the conditions of her employment.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists.
As to complainant's disparate treatment claims, a complainant must
establish a prima facie case of discrimination by presenting facts that,
if explained, reasonably give rise to an inference of discrimination.
Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (August 22,
2001). Next, the agency must articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful in meeting its
burden, complainant must prove by the preponderance of the evidence
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133, 143 (2000).
Complainant argued that she was discriminated against when her first-line
supervisor challenged and later denied her advanced sick leave request
for 80 hours. The agency explained that complainant's leave request
had been denied because she did not have the proper documentation to
indicate the diagnosis and prognosis and had advised complainant to submit
the necessary medical documentation. Complainant does not dispute her
failure to submit the necessary medical documentation. Upon submitting
her medical documentation, complainant alleged that her first-line
supervisor, challenged the validity and authenticity of her documents.
Complainant also alleged that the agency discriminated against her when
overtime opportunities and daily work assignments in her work unit
were allegedly administered in a disparate and inequitable manner.
However, complainant does not specify persons who received overtime
opportunities nor does she identify employees who received more favorable
work assignments than she. Furthermore, complainant has failed to show,
by a preponderance of the evidence, that the agency's actions were taken
on the bases of race, religion, sex, age, national origin, disability,
and reprisal. The Commission therefore finds that there are no genuine
issues of material fact in dispute that support complainant's allegations
of discrimination.
Accordingly, the agency's decision finding no harassment and
discrimination is AFFIRMED.
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
July 15, 2005
__________________
Date