0120091080
05-21-2009
Cynthia Clark, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia Clark,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091080
Agency No. 200J-0553-2007-102847
Hearing No. 471-2008-00076X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 16, 2008 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), 42 U.S.C.� 200e .et seq.
On July 30, 2007, complainant, a WG-2 Housekeeping Aide in the
Environmental Services Section at the Department of Veterans Affairs,
Dingell VA Medical Center, Detroit, Michigan filed an EEO complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (black) and in reprisal
for prior protected activity. Specifically, complainant claimed that
she was subjected to harassment/ hostile work environment when:
1. May 7, 2007, a co-worker called her "Nappy Head" and waved his hand
in her face;
2. On various occasions prior to May 7, 2007, her co-worker called her
"Voodoo Woman" when she wore a scarf around her head;
3. On May 29, 2007, complainant found her work cart had been sprayed
with Comet cleanser; and
4. On or about June 6, 2007, she discovered her co-worker asked an
employee if complainant and another co-worker were dating.
Following an investigation by the agency, complainant requested a
hearing before an Administrative Judge (AJ). The agency filed a Motion
for Summary Judgment or in the alternative, Motion for Decision Without
Hearing on the grounds that undisputed evidence shows that complainant
could not establish a prima facie case of a hostile work environment
based on her race or retaliation. Complainant failed to file a response
to the Motion for Summary Judgment. The AJ issued a decision without
a hearing, finding no discrimination. In its final action, the agency
implemented the AJ's decision.
Regarding the May 7, 2007 incident (claim (1)), the AJ found although
the employee who purportedly made the "Nappy Head" comment denied that
he did so, another employee claimed that he heard the comment being made,
and told complainant's supervisor. The AJ determined that, in any event,
the supervisor took corrective action by separating complainant and
the employee so that they worked on separate floors; gave complainant
a separate set of keys so she would not have to come into the office;
and told the employee to have no further contact with complainant.
Regarding the "Voodoo Head" comments (claim (2)), the AJ found that
complainant admitted that she never informed supervisors that the comment
was unwelcome; that she never told the employee to cease making this
comment; and that she never informed any management official about the
comment. The AJ noted that complainant's supervisor had no knowledge
of the comment prior to the investigation of the instant complaint.
Regarding the "Comet cleanser" incident (claim (3)), the AJ found that
upon investigation of the matter, complainant supervisor found that five
or six other carts were also sprayed with cleanser, and that an agency
employee acknowledge that she periodically sprayed carts at the end of
the night.
Regarding the "dating comment" incident (claim (4)), the AJ found that
even if this comment were made, there is nothing to show that it was
based on complainant's race, or in reprisal for prior protected activity.
The AJ found that the sole incident where there was any evidence,
albeit disputed, was the "Nappy Head" incident; and that assuming that
this comment was indeed made, the record reflects that complainant's
supervisor took corrective action. The AJ found that this single
incident could not be regarded as establishing a hostile work environment.
The AJ concluded that there were no genuine issues of material fact or
credibility presented, and that it was appropriate to issue a decision
without a hearing.
On appeal, complainant states that she never retained a representative
to conduct discovery on her behalf, and acknowledges that the deadline
to respond to an agency Motion for Summary Judgment had lapsed prior to
her seeking representation to prepare a response. Complainant argues
that she has no legal background and was unfamiliar with the discovery
documents she received from the AJ; and that there are no safeguards for
laypersons in situations where they lack a representative to guide them
through the administrative litigation process.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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.
We have considered complainant's appellate statements on appeal. While we
are sympathetic to complainant's status as a layperson without counsel
during the discovery process, we nevertheless determine that there were
no improprieties in the AJ's issuance of a decision without a hearing.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 21, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091080