0120121141
07-31-2014
Complainant v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
Complainant
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120121141
Hearing Nos. 550-2009-00283X,
550-2010-00089X
Agency Nos. NPS-08-0421,
NPS-09-0287
DECISION
Complainant timely filed an appeal from the Agency's December 7, 2011, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant had not established that the Agency discriminated against her as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-12, at the Agency's Golden Gate National Recreation Area facility in San Francisco, California.
On August 5, 2008, Complainant filed an EEO complaint (Complaint #1) alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (knee/hip injuries), and reprisal for prior protected EEO activity when:
1. Complainant was subjected to the following disciplinary actions:
a. she was suspended for a three-day period (during June 2-9, 2008);
b. she was admonished/counseled regarding work assignments;
c. she received a letter of reprimand (September 24, 2008);
2. Complainant was denied the opportunity to use a flexi-place work schedule;
3. Complainant requested a reasonable accommodation but received no response;
4. Complainant was charged Absent without Leave (AWOL) for September 26, 2008;
5. Complainant's training requests were denied;
6. Complainant received a "Minimally Successful" rating on her performance appraisal;
7. Complainant's work space was searched and a work folder removed without permission; and
8. She was treated differently with respect to work assignments when:
a. her work was reviewed by someone other than her supervisor; and
b. she was assigned duties from a co-worker's position description.
On April 20, 2009, Complainant filed a second EEO complaint (Complaint #2) alleging that the Agency discriminated against her on the bases of race, sex, disability, and reprisal for prior protected EEO activity when:
1. Complainant was suspended for two weeks beginning February 9, 2009; and
2. Complainant was charged AWOL for the period February 2-6, 2009.
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.
The Agency submitted a Motion for Partial Dismissal on January 20, 2010, with respect to claim 2 in Complaint #2. The AJ granted the Agency's Motion, and on March 15, 2010, she dismissed claim 2 as having been previously raised before the Merit Systems Protection Board (MSPB), as part of Complainant's appeal of her subsequent removal by the Agency, which was effective on April 11, 2009.1
On April 16, 2010, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a statement in opposition to the Agency's Motion on May 3, 2010. The AJ assigned to the case issued a decision without a hearing on November 28, 2011.
The AJ found the following relevant facts: Complainant had been in her current position since November 2005. Complainant was suspended for three days in June 2008, based on her refusal to follow instructions given to her by her supervisor. Complainant was told to leave her computer password for the IDEAS system with her supervisor prior to leaving for two weeks of training; however, she chose not to comply with the directive, but did not notify her supervisor of this. While she was out of the office, her supervisor needed to access her files for action and requested a temporary password in order to do so. This was routine practice in the office in order to address time-sensitive projects. Upon her return to the office, Complainant refused to access the IDEAS system until she consulted with IT security. Her supervisor ordered her to complete three critical projects on IDEAS; Complainant refused to access the system for more than one week. Complainant admitted not following her supervisors orders and maintained that the three-day suspension was in retaliation for reporting her concerns to IT security. Complainant received a Letter of Counseling on September 28, 2008, because she was rude to a project manager, and rather than assisting the project manager with her contract problem, Complainant told her she was busy and had no time to deal with the issue. Complainant admitted this was the case.
Complainant was AWOL on September 26, 2008. By her own admission, Complainant failed to notify her supervisor of her whereabouts on September 26, 2008. She had been on sick leave the day before, but failed to call in on the day in question. Complainant was charged AWOL, as she was without any sick or annual leave available at the time. Complainant had previously been counseled about notifying her supervisor when she would not be in the office.
Complainant was denied the opportunity to use a flexi-place work schedule on October 9, 2008. According to management officials, at the time of her request in August 2008, Complainant was not exhibiting the level of performance necessary to allow her to work offsite, and the duties required of her position militated against working from home. Additionally, Complainant was found to have attendance and performance problems which necessitated closer supervision and made flexi-place inappropriate.
According to Complainant, she suffers from knee and hip injuries which require her to refrain from sitting for long periods and require physical therapy. She claims to have requested the flexi-place in part to address her physical conditions. Complainant's supervisor testified that Complainant never asked for a reasonable accommodation, but rather had complained to him about her knee and neck pain. In response, he had her work station evaluated for ergonomic compliance and a standup work table was provided. The standup work station was designed to alleviate Complainant's need to constantly sit, and was what her doctor's notes advised would be beneficial. Complainant also requested on January 26, 2009, to work a part-time schedule of 4-6 hours per day. She was accommodated with this request until she stopped coming to work and was marked AWOL from January 30, 2009 through February 9, 2009.
Complainant claimed that her training requests were denied. The AJ found that Complainant had received tuition assistance in 2006 to pursue her college degree so that she could obtain her contracting warrant. The Agency thereafter developed a policy on tuition assistance and Complainant was warned that the assistance might be a one-time occurrence. She completed three college classes in 2007, but subsequent requests were denied by the Agency. Nonetheless, Complainant did attend a two-week training course in New Orleans in April 2008, as part of her employment. Complainant's training requests for Fiscal Year 2009 were denied, according her supervisor, because of Complainant's refusal to meet with him to develop a training plan. He testified that a training plan was necessary in order to allow him to monitor her training to ensure that she was successfully applying previous training before embarking on more, and possibly useless, training.
The AJ found that Complainant's FY 2009 performance rating was "minimally successful" based on the quality of her work and her attitude. Complainant did not dispute that she was given notice of her poor performance as part of the mid-year review process. Complainant's team lead testified that Complainant was observed yelling at customers over the phone and had difficulty getting along with her co-workers.
Complainant claimed that her work space was searched by her supervisor and a file was removed without her permission. However, the AJ found that, according to Complainant's testimony, a training manual she had on her desk was missing and she merely assumed that her supervisor had removed it, without any proof. Complainant also claimed that her work was reviewed by her team lead as well as her supervisor, unlike the other Contract Specialists, and that she was given duties that had been assigned to other Specialists. Her team lead testified that he reviewed the work of the Contract Specialists and that everyone was expected to assist with making payments and with other tasks.
On February 9, 2009, Complainant was suspended for fourteen days for insubordination and discourteous conduct. Complainant's suspension stemmed from three incidents. The first incident occurred on December 10, 2008, when Complainant was asked to remove from her ears ear-bud headphones which were connected to her personal phone. She had previously been asked not to wear her personal ear buds because it interfered with her ability to perform her work and respond to customers. Complainant also listened to music through her ear buds which could be heard by others, and her loud singing disturbed her co-workers. On December 10, 2008, after she was again asked not to wear her ear buds, Complainant told her supervisor that the ear buds were part of her personal attire, that she was going to continue to wear them, and that there was nothing he could do about it.
The second incident occurred on December 11, 2008, when Complainant failed to attend a meeting between a contractor and a project manager which she had been directed on December 10, 2008, to attend. Complainant told her second-level supervisor that the time for the meeting was inconvenient, and that she did not feel like driving there. The third incident occurred on December 2, 2009, when Complainant was rude to a co-worker, stood close to the co-worker, and spoke and gestured in such a way that the co-worker felt intimidated and cornered in her own cubicle. Complainant had previously received a Letter of Reprimand and a Letter of Counseling for discourteous behavior. The AJ found that Complainant admitted to committing the offenses charged, but maintained that the 14-day suspension was undeserved and based on discriminatory animus by her supervisors.
On February 9, 2009, Complainant's proposed suspension was upheld and Complainant was asked to leave work to begin a fourteen-day suspension. Complainant was then placed on paid administrative leave while her proposed removal, dated February 26, 2009, was considered. The proposal for Complainant's termination was upheld and was effective on April 11, 2009, and Complainant did not return to work at the Agency. As noted above, Complainant appealed her termination to the MSPB, which sustained her removal. The Commission concurred with the MSPB that Complainant had not shown the reasons for her removal to be pretext for discrimination.
The AJ first found that Complainant had not established a prima facie case of reprisal discrimination because she had not engaged in any protected EEO activity. Complainant consistently maintained throughout her complaint that the retaliation was based on her reporting her supervisor for requesting a temporary password to her computer account when she was out of the office.
The AJ next concluded that Complainant had not met her threshold burden with respect to a claim of hostile work environment, even when the evidence and all inferences were drawn in her favor. The AJ found that the incidents of which Complainant complained were not sufficiently severe or pervasive so as to constitute a legally hostile work environment. The AJ found that the events cited by Complainant involved "normal workplace interactions and the normal exercise of a supervisor's authority regarding performance and attendance issues." She also found that Complainant had not offered any evidenced which established that the incidents were based on her race, sex, or disability.
Additionally, the AJ concluded that, with respect to the 14-day suspension alleged in Complaint #2, assuming that Complainant had met the elements of a prima facie case or race, sex, and disability discrimination, the Agency had offered legitimate, nondiscriminatory reasons for its decision to suspend her. Complainant had refused to comply with her supervisor's instructions to stop wearing ear buds, refused to attend a work meeting she had been instructed to attend, and was rude and discourteous to a co-worker. She had previously been counseled regarding these same behaviors. Complainant did not establish that these reasons were pretext for discrimination. The AJ further found that the Agency had offered legitimate, nondiscriminatory reasons for all of the claims in Complaint #1, which Complainant did not show to be pretextual.
Finally, the AJ found that, assuming Complainant had established that she was an individual with a disability, the Agency had not failed to offer a reasonable accommodation to Complainant for her knee and hip injuries.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the AJ should not have issued a decision without a hearing, and that there were material facts in dispute. She argued that she had provided evidence which contradicted the affidavit testimony of the management officials. Complainant maintained that her report to IT security regarding the changing of her computer system password constituted protected EEO activity under the Whistleblower Protection Act. Finally, Complainant argued that she had shown that the Agency had failed to accommodate her disability. The Agency did not submit any statement or brief in opposition to Complainant's 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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 the 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").
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. There were no material facts in dispute such that the AJ would have needed a hearing in order to make credibility findings. Additionally, we find that the AJ noted where Complainant's version of the incidents was admittedly the same as that of her supervisors, thereby obviating the need to hold a hearing to make findings of fact.
Disparate treatment
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. The AJ properly found that Complainant had not engaged in protected EEO activity, as she had not previously participated in the EEO process and had not opposed any policy or practice she believed to be discriminatory. Activity which would be covered by the Whistleblower Protection Act which did not allege discrimination based on any basis covered by the Commission under the federal anti-discrimination statutes does not qualify as "protected EEO activity." Reporting allegedly inappropriate activity with respect to IT security does not fall under this category.
We assume that Complainant established a prima facie case of race, sex and disability discrimination. We find that the AJ properly found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not prove to be pretext for discrimination. Further, Complainant did not establish that she was subjected to a legally hostile work environment, as she did not show that any of the Agency's actions were either severe or pervasive, or were based on any of her protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions of Complainant on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was 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
July 31, 2014
Date
1 Complainant's Petition for Review on her removal claim was before the Commission in EEOC Petition No. 0320100029 (May 19, 2010), in which the Commission concurred with the MSPB that Complainant had not established that her removal from the Agency was due to discrimination.
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0120121141
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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