0120102128
01-04-2011
Eunice E. Mays, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Eunice E. Mays,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120102128
Hearing No. 530-2009-00232X
Agency No. DLAN080889
DECISION
On April 19, 2010, Complainant filed an appeal from the Agency's March
26, 2010, 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that Complainant was not subjected to
unlawful discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Distribution Process Worker at the Agency's Distribution Center in
New Cumberland, Pennsylvania. On March 12, 2008, Complainant was assigned
to work in warehouse 102, which was a location where Complainant did not
normally work. According to Complainant, she had worked in warehouse 102
several times. Employees assigned to work in warehouse 102 can choose
to work at any workstation they want. While working at warehouse 102,
Complainant found a drawing on the cardboard desk at the workstation
that she selected that night. Complainant believed that the drawing was
a portrayal of a black person and it had been left there to make fun of
her as a black person.
The drawing depicted a "stick figure" drawn with a thick black magic
marker. The drawing also had long black lines over it. Complainant cut
the drawing out, ripped it into pieces and threw the pieces into the
trash can. Afterward, Complainant took the pieces out of the trash can
and showed the drawing to coworkers. Various coworkers indicated that the
drawing had been there for months prior to Complainant finding it on March
12, 2008. One coworker indicated that the drawing had been there at least
one year prior to Complainant finding it. Complainant maintained that a
coworker (CW1) admitted to drawing the "stick figure" saying to her "I
did it; I am sorry if I offended you. I was trying to scribble it out."
According to CW1, the drawing was already on the desk in January 2008
when he was assigned to warehouse. He stated that he took a black magic
marker, because it was at the desk he used most of the time, and tried to
"scribble it out."
Later, on July 2, 2008, CW1 and Complainant were made to work in the same
area. Complainant indicated that she felt upset when she had to work
in the same area as CW1. The drawing was turned over to the Lieutenant
Commander who then took it to the EEO counselor. The Lieutenant Commander
proceeded to investigate the incident by interviewing various employees
finding that the drawing was not racially motivated.
On October 27, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her by subjecting her to harassment on
the bases of race (black), sex (female), and age (50) when:
on July 2, 2008, she learned that she was working in the same area
as a CW1, who, in March 2008, drew a picture that offended her and
management was no longer investigating the incident, and CW1 was not
disciplined.
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 AJ. Complainant timely requested
a hearing. Over the Complainant's objections, the AJ assigned to the
case granted the Agency's August 20, 2009, motion for a decision without
a hearing and issued a decision without a hearing on December 16, 2009.
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.
The AJ found that Complainant failed to establish a claim of harassment
based on her protected classes. Specifically, the AJ found that
Complainant failed to present evidence which suggests that her race,
color, age, or sex was involved. In this regard, the AJ found that
Complainant failed to demonstrate that the "stick figure" drawing she
found on March 12, 2008, was based on any of her protected classes. Also,
the AJ noted that Complainant alleged that she was harassed months later
when on July 2, 2008, she saw CW1, the alleged picture drawer, in the
same building. In this regard, the AJ found that Complainant has not
shown that the Agency's actions were either severe or pervasive enough
to be actionable. The AJ further noted that the drawing did not have
the Complainant's name on it, did not have any offensive words on it,
and that there was no demeaning or threatening behavior pertaining to
it. In this regard, the AJ found that the drawing was a meaningless
stick figure in black permanent marker. The AJ also found that the
Agency took remedial action with respect to the alleged harassment
since the Lieutenant Commander proceeded to investigate the incident by
interviewing other employees.
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 contends that CW1 drew the picture of the "stick
figure" that offended her. Complainant further notes that she on July 2,
2008, was made to work in the same area as CW1. Complainant also noted
that management stopped investigating the incident.
ANALYSIS AND FINDINGS
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,
at Chapter 9, � VI.B. (November 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 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").
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.
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as Complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted.
Complainant is alleging that she was subjected to a hostile work
environment. Harassment is actionable only if the incidents to which
Complainant has been subjected were "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); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75
(1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997), To establish a claim of harassment, Complainant must
show that: (1) she is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) she was subjected to unwelcome
verbal or physical conduct related to her membership in that class
and/or her prior EEO activity; (3) the harassment complained of was
based on her membership in that class and/or 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 Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)).
In the instant case, we find the AJ properly issued a decision without
a hearing since there are no genuine issues of material fact. It is
undisputed that the "stick figure" drawing did not have Complainant's
name on it and did not have any offensive words on it. Further, the
record reflects that there was no offensive behavior from CW1 or any
other coworker pertaining to the drawing. Also, the record reflects that
the drawing had been there for months prior to Complainant discovering
it. Further, conversely to Complainant's contention, we find that the
Agency attempted to take remedial action since the Lieutenant Commander
investigated the matter and brought the drawing to the attention of the
EEO counselor. We concur with the AJ that drawing every inference in
Complainant's favor, Complainant has not shown that she was subjected
to a hostile work environment based on race, sex, or age. Moreover,
Complainant has failed to show that the "stick figure" drawing she
discovered was meant for her or was meant to demean her based on her
protected classes.1 Therefore, we concur with the AJ that Complainant
has failed to establish a claim of harassment.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final order adopting the AJ's decision.
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
January 4, 2011
Date
1 We note that when a party moves for a decision without a hearing,
such as the Agency did here, the non-moving party's opposition must
consist of more than mere unsupported allegations or denials and must
be supported by affidavits or other competent evidence setting forth
specific facts showing that there is a genuine issue for a hearing. See
Celotex, 477 U.S. at 324.
2 With respect to the matters raised by Complainant on appeal, we
find, for the reasons set forth above, that she has not established a
genuine issue of material fact or established discriminatory harassment.
Whether CW1 initially drew the stick figure or merely tried to "scribble
it out" is not relevant, because there is no evidence in the record
that the drawing was directed at Complainant or any other employee or
was based on race, sex or age. Likewise, there is no evidence that the
assignment of Complainant and CW1 to work in the same location was based
on discriminatory animus.
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0120102128
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102128