0120090866
02-03-2011
Delilah P. Kayser, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Delilah P. Kayser,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120090866
Hearing No. 541-2008-00076X
Agency No. FNP-2006-112
DECISION
Complainant filed an appeal from the Agency's November 13, 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), as amended, 42 U.S.C. � 2000e et seq. For the
following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Resource and Facility Management Program Assistant at the Agency's
Salinas Pueblo Missions National Monument in Mountainair, New Mexico.
On September 27, 2006, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of sex (female) and
reprisal for prior protected activity, when:
Complainant was subjected lo a hostile work environment on the bases
of sex (female) and reprisal for protected EEO activity when she was
subjected to harassment regarding work assignments, leave requests,
her tour of duty, her work space and isolated from her co-workers,
from 2005 through July 2006.1
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
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over Complainant's
objections, issued a decision without a hearing on October 29, 2008.
In his decision, the AJ found that the material facts were not in
dispute and that no issues of credibility warranting a hearing remained
outstanding. The AJ considered the evidence in the light most favorable
to Complainant and determined that Complainant did not establish that she
was subjected to harassment as alleged. Administrative Judge's Decision
(AJ Decision), October 29, 2008, at 2, 13.
Specifically, the AJ found that the incidents Complainant described
in her complaint, assuming that they occurred as Complainant described
them, did not describe unwelcome conduct, based on her sex, sufficiently
severe or pervasive to state a claim of harassment. Id. at 10, 11.
The AJ considered the following incidents contained in Complainant's
complaint which she contended were harassment based on her sex and in
reprisal for her current EEO activity.
1. In the spring of 2005, S1 made the remark to another employee
that NPS had to make a special award for women since women can't compete
with men;
2 In the summer of 2005, S1 commented to another employee, that
if Complainant would "shut her f***ing mouth, maybe she could get her
work done in 40 hours;"
3. In the fall of 2005, S1 described Complainant as "slow" to
another employee, in her presence;
4. On March 16, 2006, S1 verbally reprimanded the Complainant
regarding leave that she had taken and further criticized her work
schedule;
5. On April 11, 2006, S1 instructed Complainant to take a GSA vehicle
to a shop for repairs where Complainant's estranged spouse worked;
6. In May 2006 and June 2006, S1 again spoke with Complainant about
her schedule;
7. On July 5, 2006, a day that the Complainant was working at another
site, S1 instructed Complainant to clean off her desk top immediately;
and
8. On July 20, 2006, the Complainant learned that S1 instructed a
co-worker not to speak with her.
The AJ noted, for example, that Complainant alleged harassment when she
was unhappy with the schedule she was assigned by her supervisor, the
Chief of the Division of Resources and Management (S1). The AJ found the
undisputed evidence showed that S1 made an exception for Complainant so
that she did not have to start her workday at 6:30 am, which he required
of other employees, when Complainant requested a later tour of duty. Id.
at 11. The AJ reasoned that Complainant's complaints over her schedule
were an example of a typical workplace dispute arising from the Agency's
administration that did not rise to the level of an employment action
to support a cause of action. Id. Additionally, the AJ found that the
unwelcome and demeaning remarks Complainant attributed to S1, even if they
occurred as Complainant alleged, did not create an atmosphere a reasonable
person would consider hostile or abusive. Id. at 10. The AJ observed
that Complainant had no prior EEO activity before the instant complaint.
The AJ found that Complainant did not establish a prima facie case of
harassment based on sex or reprisal, and that even if she had done so,
that the Agency articulated legitimate, non-discriminatory reasons for
its actions such as the administration and supervision of Complainant's
work schedule. Id. at 11, 12.
The AJ concluded that Complainant failed to show that she was harassed
based on her sex or reprisal. Id. at 12, 13. The Agency subsequently
issued a final order fully implementing the AJ's finding that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged. Agency's Final Decision (Ag Decision), November 13, 2008 at 1.
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, 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). 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 the AJ properly issued his decision without
a hearing. We find the material facts are not in dispute. We consider,
for example, that the sex-based comments Complainant attributes to S1,
assuming they occurred in the manner she depicts in her complaint,
are isolated remarks, spoken either in private or in the presence of
a very limited audience. See Statement of Delilah Padilla, August 19,
2007, page 27; Report of Investigation (ROI) at 145. We find that in
her complaint, Complainant has alleged a handful of incidents, mostly
unpleasant comments or discussions with S1, Complainant's supervisor with
whom the record confirms she shares a turbulent work relationship. We note
that witnesses corroborated S1's opinion that Complainant resisted S1's
efforts to manage Complainant's position in various aspects including
scheduling, workspace, daily tasks and performance. See Statement of
Park Superintendent, August 13, 2007, ROI at 214, 215. Such day to day
operational decisions fall squarely within the authority of ordinary
supervision and do not rise to the level of harassment. See Olivia
Johnson v. Dep't of Defense (Def. Finance and Acc't Serv.), EEOC Appeal
No. 01A11655 (August 13, 2002), req. for reconsideration denied, EEOC
Request No. 05A21228 (Dec. 9. 2002).
CONCLUSION
We AFFIRM the Agency's Final Decision finding no discrimination.
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 3, 2011
__________________
Date
1 We have rephrased Complainant's claim to reflect the general categories
of incidents by which Complainant alleged to have been subjected to
harassment on the identified bases.
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01-2009-0866
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090866