0120130392
03-09-2015
Complainant v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120113689
0120130392
Hearing Nos. 420-2011-00050X
420-2012-0003X
Agency Nos. DON-09-00204-01761
DON-11-00204-01053
DECISION
Complainant timely filed appeals from the Agency's June 20, 2011 and October 9, 2012, final orders 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. The Commission accepts both appeals pursuant to 29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission AFFIRMS the Agency's final orders.
ISSUE PRESENTED
The issue presented is whether Complainant has proved by preponderant evidence that she was subjected to a hostile work environment on the basis of reprisal (prior Title VII EEO activity).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Recreation Aide, NF-0189-01, at the Agency's Pensacola Naval Air Station, Florida. In this capacity, she was responsible for assisting the Supervisory Sports Specialist in providing fitness programs for all patrons.2 She filed two formal EEO complaints in which she alleged harassment on the above-referenced basis when:
A. On March 11, 2009, the Gymnasium Patron yelled, screamed, and cursed at her and her first-line supervisor (S1) took no action;
B. On April 6, 2009, S1 gave her a letter of discipline;
C. On April 24, 2009, the Fitness Coordinator "blew up at Complainant" for not clocking out when she was leaving for an EEO appointment;
D. On May 7, 2009, she received a negative evaluation;
E. From March 2009 to July 2009, the Director did nothing to prevent further acts of harassment;
F. In January 2010, the Commanding Officer allowed her EEO complaint to go beyond the 180 days for processing;
G. On January 10, 2010, the EEO Case Manager informed her that her EEO complaint had been forwarded to Miami, Florida for further processing;
H. On February, 11, 2010, she received an acknowledgement letter pertaining the underlying complaint and found that it contained incorrect information;
I. On April 24, 2010, an Agency employee argued with her concerning a Holding Crew member who had been sent to clean the weight room;
J. Her S1 gave her a verbal warning about taking more than a 15-minute break;3
K. On April 21, 2010, she was sent home from work for nine days without written notification4 from S1 and the Fitness Director;5
L. On April 29, 2010, she received a Letter of Caution for Unsatisfactory by the Fitness Director;
M. On June 10, she received a negative evaluation, which resulted in her not receiving a raise or bonus;
N. On September 13, she was summoned to a meeting by S1 and the Fitness Coordinator to discuss her 45 day evaluation which she refused to attend because she was denied EEO representation; and
O. On September 15, 2010, she received a Notice of Termination for failure to comply with a directive.
The Agency accepted both complaints for investigation. At the conclusion of each investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ) or, in the alternative, a final decision on the record from the Agency. Both times, Complainant requested a hearing; thus her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
Regarding the matters contained in the first complaint, the Agency, on August 5, 2010, filed a motion requesting that the AJ issue a decision without a hearing. The AJ (AJ1) granted the Agency's request and, on May 11, 2011, issued a ruling in which she found that Complainant failed to prove discrimination. The Agency subsequently issued a final order adopting the AJ's findings. Complainant thereafter filed this appeal, which we docketed as EEOC Appeal No. 0120113689.
Regarding the matters contained in the second complaint, the Agency, on February 24, 2012, filed a motion requesting that the AJ assigned to the case (AJ2) issue a decision without a hearing. AJ2 granted the Agency's request and on September 5, 2012, issued a decision in which he found that Complainant failed to prove her discrimination. The Agency subsequently issued a final order adopting the AJ's findings. Complainant thereafter filed this appeal, which we docketed as EEOC Appeal No. 0120130392.
CONTENTIONS ON APPEAL
Both parties' contentions on appeal are an essential part of their respective cases-in-chief, and are inherently addressed in the "Analysis and Findings" section below. We therefore decline to repeat those contentions here and will not specifically address them in this decision.6
STANDARD OF REVIEW
In examining the matter contained in both complaints we must scrutinize both AJ's legal and factual conclusions, and the Agency's final orders 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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 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 anew or with fresh eyes and are free to accept or reject AJ's and the Agency's factual conclusions and legal analysis.
ANALYSIS AND FINDINGS
Decision without a Hearing
Initially we consider whether it was appropriate for the AJ to issue a decision without a hearing in this case. 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.
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 (Jul. 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the records in this case, we find that they were adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find that both parties were given ample notices, comprehensive statements of the undisputed facts, and the opportunities to respond. Thus, we have no reason to disturb the AJ's decisions to issue rulings without a hearing.
Retaliatory Harassment
Complainant alleges she was subjected to harassment based on reprisal. It is well settled that harassment based on an individual's prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under this basis, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Both AJs found that Complainant failed to present evidence to establish that any of the actions to which she allegedly was subjected was based on her prior EEO activity. We concur in these determinations. Other than Complainant's bare assertions and subjective beliefs, nothing in the record links the alleged discriminatory events to a retaliatory motive. Therefore, she has not proven the third element necessary for her harassment claims to prevail. Bare assertions and subjective beliefs, such as the ones put forth in Complainant's underlying allegations or "Summary of Statement," which she submits in support of her appeal in EEOC Appeal 0120113689, are insufficient to meet her burden of establishing that the actions to which she was allegedly subjected were based on impermissible reasons. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We note that both AJ's findings are supported by our de novo review of the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find no reason to disturb AJ1's and AJ2's decisions to issue rulings without a hearing nor their subsequent findings, which conclude that Complainant failed to prove her retaliatory harassment claims. We therefore AFFIRM the Agency's final orders.
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
March 9, 2015
Date
1 In the interest of judicial economy, the Commission exercises its discretion to consolidate the appeals herein.
2 Complainant was a non-appropriated fund flex employee. As such, her hours were not guaranteed.
3 This was the last allegation in the first formal complaint at issue in this decision.
4 Regarding this allegation, Complainant apparently went to the emergency room after claiming that cleaning solution splashed into her eye. When asked by S1 what had happened, she refused to answer without representation.
5 This was the first allegation in the second formal complaint at issue in this decision.
6 We note that Complainant did not submit contentions on appeal regarding EEOC Appeal 0120130392.
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0120113689
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113689