0120113961
02-04-2013
Betty J. Hooker, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Betty J. Hooker,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113961
Hearing No. 570-2009-00888X
Agency No. AREUHEID09JAN00458
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 18, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant worked as an Administrative Support Technician at the Agency's Mission Support Division, Contracting Support Command, U.S. Army Garrison in Heidelberg, Germany.
On March 7, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the basis of race (African-American) when:
1. on December 4, 2008, her supervisor requested her to submit a leave request for her absence from work on December 3, 2008;
2. on December 10, 2008, her supervisor presented her with a memorandum outlining office leave procedures;
3. on January 5, 2009, the Acting Chief charged her with one hour of leave for late arrival and one hour of leave for early departure;
4. on January 8, 2009, her supervisor required her to submit a leave request for time taken on December 31, 2008;
5. on February 3, 2009, her supervisor gave her a memorandum placing her on leave restriction; and
6. On February 6, 2009, her supervisor required her to bring proof to support her request for leave under the Family Medical Leave Act.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On May 26, 2011, the AJ issued notice of her intent to issue a decision without a hearing, to which both parties responded. On June 16, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order.
In her decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of race discrimination. The AJ further found that assuming arguendo Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The AJ noted that in regard to claim 1, Complainant's supervisor stated that as an Administrative Support Technician, Complainant was responsible for recording time and attendance for the civilian employees. The supervisor stated that during the relevant period, Complainant's work hours were from 7:00 a.m. to 4:30 p.m. The supervisor stated that on December 3, 2008, Complainant called her and stated that she "was not coming in. She did not ask for a late arrival. She only told me she was not coming in because it was, um, amber road conditions in Wiesbaden."
The supervisor stated that the next day, December 4, 2008, she asked Complainant to submit a leave request for her absence the previous day. The supervisor stated that Complainant objected to her request because she contended that "Amber" road conditions had been declared, that there were bad weather conditions and that she should be granted administrative leave. The supervisor denied Complainant's request because "I explained to [Complainant] that I have another employee who lives in the same area and arrives on time, works all day, without any problems. So, I told [Complainant], 'submit your leave slip. This is the procedures.' And she did."
Regarding claim 2, the supervisor stated that on December 4, 2008, she gave Complainant a memorandum outlining office leave procedures because she did not follow proper leave procedures, and would arrive late to work without take leave. The supervisor stated that Complainant also did not contact her when she took unscheduled leave. Specifically, the supervisor noted that Complainant "had used more than she had to. You know, more than she was entitled, you know. Even during the month of August, I gave her some . . . free days of. . . leave as time off work because her husband was coming. She never had enough leave. Every time that she had 1 day, 8 hours, she took it. She would call in sick the following pay period. So, I felt the need to. . . put it in some kind of - - explaining. First . . . to explain what were the procedures although I knew that she should have - - she knew the procedures because she was the timekeeper. In addition, to explain to her what it was that I was expecting of her."
Regarding claim 3, the Budget Analyst stated that on January 5, 2009, she was asked to be the Acting Chief by another Acting Chief. The Budget Analyst stated that she charged Complainant with one hour of leave for late arrival and one hour of leave for early departure. Specifically, the Budget Analyst noted that Complainant was not in the office in the morning and asked other employees if they had seen Complainant but they said they have not. The Budget Analyst stated that around 8:50 a.m., she received an email that Complainant had sent to the division "some general information that the division might want to know about. So, I knew she was in...so, that's almost two hours after her expected arrival. And, again, we try to treat each other like adults; and if you arrive late - - we are very flexible. If you arrive late, we expect you to work late or take leave...she didn't call to say that she was going to be late and she didn't come and see me when she came in. And that's something that we are all expected to do, is that you report to your supervisor."
Further, the Budget Analyst stated that later that day around 3:30 p.m. she went to the restroom and noted that Complainant's door was shut and locked, and she was not due to get off until 4:30. The Budget Analyst stated that around 4:10 p.m., she checked to see if Complainant was back but she was not in her office. The Budget Analyst stated that she then sent an email to Complainant requesting a leave slip for her late arrival and early departure and Complainant responded the next day "'I was late in due to amber road condition! And, she said, 'I did not leave early. Please explain your assumptions.'"
The Budget Analyst stated that she and Complainant had a discussion about the previous day. Specifically, the Budget Analyst stated that she explained to Complainant that she did not hear anything from her when she arrived to the office late and that she did not see her in the afternoon. The Budget Analyst stated that Complainant told her it was all her assumptions and "I said, 'and it's not an assumption. It's a fact.' And I said, 'I mean, where were you?' You know. 'Help me assume something that we both clearly know was a fact that you were not sitting at your desk with the lights out and the door shut and locked." The Budget Analyst stated that after some discussion, Complainant complied and submitted a leave request which she signed.
Regarding claim 4, the supervisor stated that on December 31, 2008, she was on leave, and that the Acting Chief was in charge during the relevant period. The supervisor stated that when she returned to work, the Acting Chief informed her that Complainant did not report to work on December 31, 2008. The supervisor stated that she asked Complainant why she did not report to work on December 31, 2008 and Complainant claimed she was at work. The supervisor stated that she then asked Complainant to provide documentation but Complainant "did not provide anything. I waited, maybe, four days, and then, I requested the - - to put [Complainant] in AWOL for the time that she did not report to duty."
Further, the supervisor stated that she later received documentation that Complainant reported late to work on December 31, 2008. Specifically, the supervisor stated that she requested information systems to look at Complainant's computer and "the proof of documents that they found showed that [Complainant] arrived maybe, I think, around 12:30 or something like that." The supervisor stated that she then emailed Complainant "requesting her to submit a leave form for the morning, for the time that she did not work. To this date, I have not received that leave form."
Regarding claim 5, the supervisor stated that on February 3, 2009, she gave Complainant a memorandum placing her on leave restriction. The supervisor stated that the memorandum was necessary because of Complainant's failure to follow appropriate leave procedures and her failure to request leave in advance. Specifically, the supervisor stated the memorandum was "really a formal leave restriction, explaining to [Complainant] how many hours, what was expected of her, and - - it covered everything and it was really directed to her - - for her to follow; and, any deviation from that, there were consequences."
Regarding claim 6, the supervisor stated that on February 9, 2009, Complainant requested leave under the Family Medical Leave Act (FMLA) for the purpose of picking up a prescription for her son. The supervisor stated that she explained to Complainant that she was required to submit a copy of her son's prescription to support her FMLA request but Complainant withdrew her request because it was an invasion of privacy.
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argued that the AJ "declined to hear my entire case. My case is more than leave issues...I was subjected to workplace mobbing/hostility/intimidation/outright abusive management and especially the newly assigned hand-picked Acting Chief [supervisor] and [Budget Analyst]."
The instant appeal followed.
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 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation. Moreover, Complainant's appellate arguments encompass a variety of new matters that were not the subject of the investigation of the instant complaint.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race. We further find that the incidents of harassment identified by Complainant were not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final order implementing the AJ's decision finding 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
February 4, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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