Dolly H.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.

Equal Employment Opportunity CommissionDec 5, 2017
0120170819 (E.E.O.C. Dec. 5, 2017)

0120170819

12-05-2017

Dolly H.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Dolly H.,1

Complainant,

v.

Wilbur L. Ross, Jr.,

Secretary,

Department of Commerce

(National Institute of Standards and Technology),

Agency.

Appeal No. 0120170819

Hearing No. 531-2013-00165X

Agency No. 57-2012-01934

DECISION

On January 4, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 5, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was proper; and (2) whether Complainant established harassment/discrimination based on race/national origin (Hispanic), sex (female), age (56), disability (perceived), and reprisal.

BACKGROUND

During the period at issue, Complainant worked as an Information Technology Specialist, ZP-2210-III, at the Agency's Office of Safety, Health and Environment, Management Resources; National Institutes of Health, National Institute of Standards and Technology located in Washington, District of Columbia.

On July 10, 2012, she filed a formal complaint alleging harassment/discrimination on the above-identified bases when: (1) she was denied training; (2) she received a negative mid-year performance review on April 24, 2012; (3) she was held accountable in mid-May, 2012, for work she could not perform; (4) she received a negative email, on February 17, 2012, regarding communication problems and portrayed as slow, inattentive, incompetent, and untrained; (5) she was terminated on May 20, 2012; and (6) when, on July 19, 2012, her former second-line manager (S2) held a meeting to discuss her formal EEO complaint. The Agency accepted the complaint for investigation.2

After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge. Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 12, 2013 motion for a decision without a hearing and issued a decision without a hearing on October 28, 2016. In her decision, the AJ found that Complainant had not established discrimination as alleged. The Agency subsequently issued a final order adopting in full the AJ's finding. Complainant thereafter filed this appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency's summary judgment motion does not meet the summary judgment standards as it does not provide the required undisputed fact support and should therefore be overturned by the Commission. Complainant further contends that the Agency's position should not have been accepted by the AJ as its proffered explanations are mere denials and appear to be more like pretext arguments rather than legitimate nondiscriminatory reasons.

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. (Aug. 5, 2015) (if an AJ'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 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 Chapter 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

Initially we consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record 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 (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 AJ 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 record in this case, we find that the record was adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. The Agency filed a Motion for Summary Judgment on July 12, 2013, which provided Complainant ample notice, a comprehensive statement of the undisputed facts, and an opportunity to respond. We also note that the Complainant submitted her response thereto on August 4, 2013. Thus, we find that the AJ's issuance of a decision without a hearing was proper.

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of race/national, sex, age, disability, and reprisal.

We now look to see whether the Agency provided legitimate, nondiscriminatory reasons for the actions Complainant alleged constituted disparate treatment based on her protected bases. The AJ found that the record established that Complainant was denied training because at the time of her request, her workload was too heavy. She further found that two other employees outside of Complainant's protected bases were also denied training for the same reason. See Administrative Judge's (AJ) October 28, 2016 Decision at 23.

Regarding Complainant's negative mid-year review, the AJ noted the Agency's statements in the record that Complainant was given such a review because her work contained major defects, and she was not always knowledgeable about her projects or able to explain how different projects worked. The AJ further found that Complainant's was given a negative review because she did not communicate well with her supervisor and because her colleagues had to figure out solutions when she ran into problems. Id. at 23-24. The record indicates that S1 informed Complainant of her performance shortcomings as early as February 17, 2012, because of the errors made in work assignments and her inability to communicate effectively regarding the work turned in as complete.

As to the Complainant's allegation that she was held accountable for work she could not perform on her above-discussed mid-year review, the AJ found that even though Complainant was experiencing computer problems during the time she was held accountable for work she allegedly could not perform, among other things, the record indicates that Complainant had other ways of completing her work, such as requesting a new computer on a temporary basis. Id. at 24.

The AJ also found that Complainant was terminated on May 30, 2012, because as a probation employee, she had not demonstrated that she could perform IT work at the III level. As noted above, Complainant was informed as early as February 17, 2012, about her work-related deficiencies. The AJ further noted that, on April 24, 2012, S1 provided Complainant a lengthy mid-year review which detailed Complainant's performance problems. Finally, the AJ noted that Complainant's miscommunication regarding a meeting the two had scheduled with a client caused S1 to be late for the encounter. The AJ also noted that the reasons for Complainant's termination were detailed in her termination letter. Id. at 28; see also ROI, Exhibit 3 at 23.

Regarding allegation (6), the AJ found that, on February 19, 2012, Complainant's co-worker (CW1) received a telephone call from an individual asking probing questions about Complainant. The record indicates that CW1 refused to answer the questions posed instead referring the caller to S2. Upon determining later that the telephone call received by CW1 was from an EEO Counselor seeking information about Complainant's complaint, S2 held a meeting to inform his staff about handling EEO matters. S2 did not mention Complainant or her allegations of discrimination during the meeting. This finding is supported by S2 and those who attended the meeting, although some of them were previously aware of Complainant's EEO allegations. Id. at 29-30.

Based on the AJ's findings, supporting testimonial and documentary evidence in the file, the Commission finds, as did the AJ, that the Agency successfully met its burden of providing legitimate, nondiscriminatory reasons for its actions.

In the final step of a disparate treatment analysis, our inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason(s) was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on race, color, and sex.

Ultimately, the AJ found that Complainant presented no evidence, other than her own explanations, beliefs and assertions, which, in many cases tended to blame others for her performance shortcomings and Agency's actions purposed to correct those shortcomings, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet his burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore agree with the AJ and find that Complainant did not meet her pretext burden.

Harassment

Complainant's harassment allegations consist of her belief that she was subjected to a hostile work environment when she received a negative email, on February 17, 2012, regarding communication problems and portrayed her as slow, inattentive, incompetent, and untrained.

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 intimidating, 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

We find that Complainant has not established a claim of harassment because we find no persuasive evidence that Complainant's race/national origin, sex, age, perceived disability, and prior EEO activity played a role in this matter. The February 17 email was work-related and was neither severe nor pervasive enough to rise to the level of a hostile work environment claim.

Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment regarding her disparate treatment allegations must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a ruling without a decision was proper. We further find that Complainant did not establish harassment/discrimination based on race/national origin, sex, age, disability and reprisal. Accordingly, we hereby AFFIRM the Agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

_12/5/17_________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

2 Issue 4 will be analyzed under a harassment analysis while the remaining issues will be considered using a disparate treatment analysis as they are separate and discrete acts.

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