0120073103
04-15-2010
Jacqueline Gordon, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Jacqueline Gordon,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120073103
Hearing No. 100-2005-00914X
Agency No. 04-00034
DECISION
On June 29, 2007, complainant filed an appeal from the agency's July
18, 2007 final order1 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). 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 Secretary at the agency's Headquarters in Washington, DC.
On September 21, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
sex (female), color (brown), and in reprisal for prior protected EEO
activity under Title VII when:
1. On August 20, 2004, she was denied a $500.00 monetary award;
2. In August 2004, she was denied a promotion; and
3. In September 2004, her supervisor (S1) assigned her the duties of a
GS-12 Contract Specialist in addition to her regular duties.
Complainant also alleged that she was subjected to a hostile work
environment on the bases of race (African-American), sex (female),
color (brown tone), and in reprisal for prior protected EEO activity
under Title VII when, in addition to the incidents alleged above:
4. On December 17 and 18, 2003, her acting supervisor (AS) asked numerous
questions regarding the validity of a Metro bomb threat after complainant
was unable to get to work;
5. On December 18, 2003, AS harassed her because she did not believe the
Metro had a bomb threat, and she stood over complainant's desk and scolded
her in the presence of visitors and clients in complainant's office;
6. On July 6, 2004, her co-worker accused her of stealing his government
credit card, and did not apologize to her when he located his misplaced
credit card;
7. On July 28, 2004, AS declined to certify her timesheet for overtime,
but approved overtime for other employees;
8. On October 12, 2004, when she arrived at work, she discovered a
derogatory note on her chair, and when she informed S1, she received no
response;
9. On October 27, 2004, AS harassed her to work overtime in order to
complete a high priority assignment; and,
10. AS singled her out, intentionally harassed her, and treated her
differently than the other employees.
At the conclusion of the investigation, complainant was provided 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 AJ granted the agency's motion for a decision
without a hearing in part as to complainant's hostile work environment
claim and held a hearing on May 31, 2007 as to claims (1) - (3).
The AJ issued a bench decision as to claims (1) - (3) on June 1, 2007.
The AJ initially assumed that complainant had established a prima facie
case on the alleged bases for each incident and found that the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
As to claim (1), the Management Analyst (MA) testified that there is a
budget for awards and complainant's award was actually increased from an
eight-hour time-off award to a 16-hour time-off award. As to claim (2),
S1 asserted that while complainant performed her GS-5 secretarial duties
proficiently, there were aspects of her job that she was not adequately
performing, and the level of complexity of her work did not justify
promotion to the GS-6 level. Finally, as to claim (3), S1 testified
that complainant's job duties included responding to correspondence
and the fact that a GS-12 was presently performing those duties does
not necessarily mean that those duties were GS-12 job duties in and
of themselves. S1 added that she discussed with complainant taking on
the additional duties with the idea that if she could demonstrate success
performing this work, S1 would likely consider her for promotion. The AJ
found that complainant failed to establish that the agency's reasons were
pretextual and therefore held that complainant had not been subjected
to discrimination on the alleged bases.
On June 18, 2007, the AJ granted in part the agency's motion for a
decision without a hearing as to complainant's hostile work environment
claim. The AJ found that the alleged incidents were nothing more than
isolated, common workplace occurrences and were therefore not sufficiently
severe or pervasive to create a discriminatory hostile work environment
on any of the alleged bases. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she was deprived of due process when
she was not allowed to examine and cross-examine key management officials.
Complainant also alleges that substantial evidence was not considered
by the AJ. Finally, complainant asserts that the agency intimidated
and harassed her witnesses and the AJ failed to consider this witness
intimidation and tampering. Complainant requests that we overturn the
AJ's decision and order a new hearing.
ANALYSIS AND FINDINGS
Contentions on Appeal
Regarding the allegations raised by complainant on appeal, we find that
her claim of a denial of due process when certain witnesses were excluded
by the AJ is wholly unsubstantiated by the record. Commission precedent
provides AJs broad discretion in the conduct of a hearing. See 29
C.F.R. � 1614.109; see also EEOC Management Directive 110 (MD-110),
Chapter 7, at 9-10 (1999). We note that when the AJ began the hearing,
he listed the accepted witnesses for each party. Complainant's counsel
failed to make any objection on the record regarding witnesses.
In addition, we note that complainant has not provided any supporting
evidence on appeal to support her claim that she requested and was denied
the opportunity to call a witness at the hearing. We further find
that complainant has failed to put forth any evidence to substantiate
her allegations of witness-tampering and intimidation. Accordingly,
we find no evidence to show that the AJ erred.
Disparate Treatment
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant must
first establish a prima facie case 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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). 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). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
After considering the evidence of record, we concur with the AJ's findings
that the agency has articulated legitimate, nondiscriminatory reasons
for its actions. As to claim (1), MA testified that complainant
was nominated for an award of $500 cash and 16 hours time off.
Hearing Transcript (HT), at 141. The Award Review Team (ART) has a
limited budget to spread across the organization and it recommended that
complainant be awarded eight hours time off. HT, at 141-144. MA added
that the Director of the Division actually approved an increase in the
award given to complainant awarding her 16 hours time off. Id. at 155.
As to claim (2), S1 testified that had complainant successfully performed
the additional duties, complainant most likely would have been promoted.
S1 asserted that complainant was unsuccessful in performing the additional
duties because S1 never received a final product back from complainant.
HT at 187 - 188. As to claim (3), S1 testified that while a GS-12
employee performed the correspondence duties, that employee performed
these duties in addition to GS-12 work. HT at 190. S1 added that the
correspondence duties were not limited to any particular grade and at the
time of the hearing, a GS-6 was performing those duties. Id. at 191.
The Commission also concurs with the AJ's finding that complainant failed
to proffer evidence establishing that the agency's articulated reasons
for its actions were more likely than not a pretext for discrimination.
We find that aside from complainant's bare assertions, the record is
devoid of any persuasive evidence that unlawful discrimination was
a factor in any of the agency's actions. We further note that the
agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. See Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). At all times the
ultimate burden of persuasion remains with complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were not the
real reasons, and that the agency acted on the basis of discriminatory
animus. Complainant failed to carry this burden. Accordingly, the AJ's
reasons for concluding that the agency did not discriminate or retaliate
against complainant are supported by substantial evidence in the record.
For these reasons, we discern no basis to disturb the AJ's decision.
Hostile Work Environment
Next, we consider whether the AJ properly issued a decision without
a hearing in part, with regard to complainant's allegations of
discriminatory harassment on the bases of race, sex, color, and in
reprisal for prior protected EEO activity. The Commission's regulations
allow an AJ to issue a decision without a hearing when s/he finds that
there are no genuine issues of material fact, 29 C.F.R. � 1614.109(g).
This regulation is patterned after the summary judgment procedure 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). The AJ may properly
issue a decision without 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. 0120024206 (July 11, 2003).
We find that the AJ's determination to issue a decision without a hearing
regarding complainant's claim of discriminatory harassment on the bases
of race, sex, color, and reprisal was appropriate.
We note that it is well-settled that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin, age,
disability, or religion is unlawful, if it is sufficiently severe or
pervasive. Hurston v. United States Postal Service, Appeal No. 01986458
(January 19, 2001), (citing Wibstad v. United States Postal Service, EEOC
Appeal No. 01972699 (August 14, 1998)). To establish a prima facie case
of hostile work environment, a complainant must show that (1) s/he belongs
to a statutorily protected class; (2) s/he was subjected to harassment
in the form of unwelcome verbal or physical conduct because of her/his
protected class; (3) the harassment complained of was based on her/his
statutorily protected class; and (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. See 29 C.F.R. � 1604.11; Davis
v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14, 2003).
Complainant must show that the actions complained of were taken because
of or based on her protected status and are sufficiently patterned
or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
A hostile work environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). An alteration
to an employee's working conditions exists if a tangible, discrete
employment action is taken, e.g., hiring, firing, transfer, promotion,
non-selection, or the agency's actions were sufficiently severe and/or
pervasive to create a hostile work environment.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). We conclude that complainant did not
prove that she was subjected to conduct sufficiently severe or pervasive
to create a hostile work environment and that she also failed to prove
the agency's decisions and actions were unlawfully motivated by her race,
sex, color, or in reprisal for her prior protected activity. Even if we
assume that the alleged actions would be sufficiently severe or pervasive
to constitute a hostile work environment, there is insufficient evidence
that any of them were motivated by discriminatory animus. Accordingly,
we find the AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
complainant was subjected to a discriminatory hostile work environment.
CONCLUSION
Accordingly, the agency's final order affirming the AJ's finding of no
discrimination is AFFIRMED.
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
April 15, 2010____________
Date
1 The AJ issued a bench decision after a hearing on June 1, 2007 and
a partial summary judgment on June 18, 2007. Complainant filed the
instant appeal on June 29, 2007 and the agency subsequently issued a final
decision on July 18, 2007. We will accept the appeal as timely filed.
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0120073103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073103