0120121198
07-03-2014
Complainant v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
Complainant
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120121198
Hearing No. 430-2011-00299X
Agency No. 11-0018-SRO
DECISION
Complainant timely filed an appeal from the Agency's February 7, 2012, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that Complainant failed to prove that she was subjected to unlawful harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant, GS-7, at the Agency's Savannah River Operations Office in Aiken, South Carolina.
On July 29, 2010, Complainant received an e-mail from a co-worker (C1). The e-mail was entitled, "Doormats with a difference" and contained 13 doormat images with the following inscriptions:
�Come Back with a Warrant
�You are Here
�This is not a joke. If you ever want to see these people again, bring me a 5 lb. rib roast in a plain brown bag.-The Dog
�Our Dog is not a Biter, He's a Humper
�Nice Underwear
�I will not be a doormat. I will not be a doormat. I will not be a doormat. Oh, just walk all over me.
�Go Away (Come back with wine).
�I'm really glad to see ya! But then I lie like a mat.
�Beer gets you in the door
�Keys, Wallet, Mobile Phone
�We love your vacuum, we've found God, and we gave at the office. Thanks.
�Please stay on the mat. Your visit is very important to us. Your knock will be answered in the order in which it was received.
�Oh Shit, Not you Again
On December 1, 2010, Complainant contacted the EEO office about this matter. On December 2, 2010, C1's supervisors counseled him about the e-mail and ordered him not to send any more e-mails that were not business-related, and to stay away from Complainant.
On January 3, 2010, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of sex (female) and age (55 years old) when, on November 29, 2010, a Black male co-worker (C1)1 sent Complainant an e-mail that contained inappropriate statements.2
The AJ's 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 AJ. Complainant timely requested a hearing. On December 1, 2011, the Agency moved for summary judgment in its favor, to which Complainant responded in opposition. On December 30, 2011, the AJ issued summary judgment in favor of the Agency.
Specifically, the AJ found that Complainant had not proffered evidence that C1 sent the e-mail to harass Complainant on the bases of age or sex. In so finding, the AJ noted that the e-mail did not contain any overtly sexual phrases or derogatory content related to sex or age. The AJ concluded that a reasonable person would not agree with Complainant's assertion that C1 was disparaging her or making sexual advances to her through the e-mail. The AJ further found that the conduct was not severe or pervasive enough to create a hostile work environment. Finally, the AJ found that Complainant could not show that the Agency should be liable for the conduct because the Agency took prompt remedial action by disciplining C1 a few days after he sent the e-mail. The AJ noted that there is no evidence C1 engaged in any other offensive conduct towards Complainant. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates her contention that C1's e-mail was degrading. The Agency does not raise any arguments on appeal.
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 Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 Chap. 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").
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Hostile Work Environment
In order 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 environment, 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). Offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
In this case, we find that that Complainant failed to establish that the alleged conduct was sufficiently severe or pervasive to establish a discriminatory hostile work environment. While the single e-mail at issue here was inappropriate for the workplace and in poor taste, it was not overtly sexist, sexual, or ageist. We note that EEO laws are not a civility code. Rather, they forbid "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Further, the conduct in this case was isolated and not repeated. See Hodges v. Federal Deposit Insurance Corporation, EEOC Appeal No. 0120110654 (Dec. 6, 2011) (isolated use of term "tar baby" inappropriate but not severe or pervasive enough to constitute harassment). Consequently, we find that the AJ properly found that Complainant failed to prove that the Agency subjected her to unlawful harassment.
CONCLUSION
Therefore, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order for the reasons set forth in this decision.
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
July 3, 2014
Date
1 Although we retain Complainant's characterization of her claim herein, the race of C1 is irrelevant to her complaint. We note that Complainant is also African-American, and she does not allege that she has been subjected to discrimination or harassment on the basis of race.
2We note that the Agency dismissed Complainant's claim that she was subjected to age and sex discrimination when, in February 2009, her supervisor gave her the task of preparing travel for several individuals and did not provide Complainant with proper information to complete the task. We note that Complainant denied that this dismissed claim was part of her complaint and does not contest its dismissal on appeal. Consequently, we decline to review the dismissal herein.
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0120121198
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121198