0120080499
09-15-2010
Jennifer S. Marshall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jennifer S. Marshall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080499
Hearing No. 430-2007-00103X
Agency Nos. 2004-0652-2006102015
2004-0652-2006102535
DECISION
On October 31, 2007, Complainant filed an appeal from the Agency's final order issued on October 3, 2007, concerning her equal employment opportunity (EEO) complaints 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 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
Whether the EEOC Administrative Judge properly issued a decision without a hearing and whether Complainant has proven by preponderant evidence that she was discriminated against and/or subjected to discriminatory harassment on the basis of reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technologist and also served as Union President for the Agency's Veterans Administration Hospital in Richmond, Virginia. She filed a formal complaint of discrimination based on reprisal on April 17, 2006 when she received a letter, dated April 6, 2006, accusing her of making sexually explicit comments regarding her own attire to other employees (Claim (1)). On June 12, 2006, she filed a second discrimination complaint based on reprisal when the Agency issued her a Notice of Proposed Removal on June 6, 2006, (Claim (2)).
On or about February 16, 2006, Complainant participated in a meeting with Agency officials regarding a union-related matter. During the meeting, a male employee, in response to an inquiry from Complainant regarding her attire, commented that she had a "boardroom look." Complainant responded that she was going for the "bedroom look;" and that the male employee should see her in "a camisole." The male employee and a female employee also present at the meeting reported the comments to the EEO Manager because they found them to be inappropriate. (Agency Ex. 1, at 1-2, also Report of Investigation (ROI), Exhibit C-3). The EEO Manager relayed the reports to the Chief, Human Resources Management Service (Chief).
On April 6, 2006, the Chief sent Complainant a letter indicating that other employees had complained she made sexually suggestive or explicit comments regarding her own attire. The letter further indicated that such comments were inappropriate in the workplace. (ROI, Ex. C-2, at 3). By response via email, Complainant denied making the comments and requested clarification. (ROI, Ex. C-2, at 2). The Chief responded that he wanted Complainant to be aware of the concerns which had been raised and asked her not to make unwelcome or inappropriate comments of a sexual nature. (ROI, Ex. C-2, at 1). On April 6, 2006, Complainant filed a formal complaint of discrimination alleging the letter to be further evidence of the constant harassment to which the Agency subjected her to for involvement in EEO and union activities.
Carrying out her duties as a Union representative, Complainant accompanied another employee to a fitness-for-duty exam on May 30, 2006. The employee requested and received certain medical records from the Agency, which he turned over to Complainant. Included in the records were 21 pages of notes from a diary maintained by the facility's Police Chief. (ROI. Ex. C-6). The next day, the Chief informed Complainant in writing that the release of the notes were not authorized, and asked that she return the documents by the end of the business day. (ROI, Ex C-4). Complainant responded that she received the documents as part of her official duties as a union official, and asked that the Agency cite legal authority supporting its request. (ROI, Ex C-8). The Chief did not provide the requested information and Complainant did not return the Police Chief's notes. On June 6, 2006, the Agency issued Complainant a Notice of Proposed Removal for failure to follow instructions. (ROI, C-9). Complainant filed another complaint of discrimination in response. She was terminated, effective July 14, 2006.
The Agency accepted and consolidated both of Complainant's complaints for investigation and at the conclusion thereof provided Complainant with a copy of the report of investigation and notice of right to request either a hearing before an EEOC Administrative Judge (AJ) or a final decision on the record.1 Complainant timely requested a hearing. On May 4, 2007, the Agency filed a Motion to Dismiss, or in the alternative, a Motion for a Decision without a Hearing. After considering the Agency's motion(s) and Complainant's response, the AJ issued a decision without a hearing finding no discrimination on both issues. Specifically, the AJ found that Complainant failed to establish a prima facie case of reprisal discrimination because there was no nexus between her protected EEO activity and her allegations of discrimination. She also found that the Agency provided legitimate, non-discriminatory reasons for its actions and that Complainant failed to establish pretext. The agency subsequently issued a final order adopting the AJ's decision. Complainant filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argued, in pertinent part, that the AJ erred factually and legally in addressing the merits of her termination claim. She also argued, among other things, that the AJ incorrectly found that she had not engaged in prior EEO activity because much of her representational activity was in the context of her role as a Union official which was not protected EEO activity. (Complainant's Brief in Support of Appeal, at 1-4).
ANALYSIS AND FINDINGS
For the reasons outlined below, we concur with Complainant's contention that the AJ should not have addressed the merits of claim (2), Complainant's termination claim. With regard to Complainant's contention that the AJ erred by finding that she had not engaged in prior EEO activity because much of her representational activity was in the context of her role as a Union official which is not protected EEO activity, we find that this is a narrow reading of the AJ's findings. According to the AJ, "there is ample evidence of [C]omplainant's prior EEO activity and the [A]gency's awareness." (Administrative Judge Decision, at 4). The AJ, however, correctly noted that Complainant was a Union representative and had represented employees in numerous cases, and cited Commission precedent stating that Union participation is not considered protected activity under Title VII. Therefore, the AJ's subsequent determination that Complainant did not establish a prima facie case of reprisal discrimination was not based on her role as a union representative.
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").
Claim (2)
At the outset, we find that the matter of Complainant's removal should not have been addressed on the merits. The record indicates that, in July 2006, Complainant initiated a grievance concerning the removal action.2 By letter, dated July 28, 2006, the Agency denied the grievance, and the Complainant, thereafter, invoked arbitration. Arbitration hearings were held on the removal action on August 8, 2006, and October 16 and 17, 2006. On March 12, 2007, the Arbitrator denied the grievance on jurisdictional grounds, and upheld the removal decision. The Arbitrator's ruling was appealed to the MSPB. The MSPB reversed the decision and remanded it to the Arbitrator for a decision on the merits. There is no dispute by either party that Complainant's intent was that her removal be addressed in another forum, not before the EEOC.3
In her decision, the AJ noted the fact that, in February 2007, Complainant requested that her EEO complaint be held in abeyance while she challenged the ruling on jurisdiction. As of the date of the AJ's decision, September 28, 2007, the AJ indicated that she had not been made aware of the status of the MSPB case. The AJ also noted that, in her response to the Agency's Motion, Complainant focused on her objections to the Arbitrator's decision.
EEOC Regulation 29 C.F.R � 1614.107(a)(4) provides for the dismissal of an claim where the Complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the Merit Systems Protection Board and Sec. 1614.301 or Sec. 1614.302 indicates that the Complainant has elected to pursue the non-EEO process. In light of Complainant's expressed intent to pursue the non-EEO process with regard to her termination, we find that this matter should have been dismissed by the AJ. Accordingly, we shall do so at this time, Claim (2) is DISMISSED pursuant to 29 C.F.R � 1614.107(a)(4).
Claim (1)
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. 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).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing on Claim (1) was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond to the motion, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery.4 In addition, the Commission finds that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor, as explained below. Finally, we find that no genuine issues of material fact or credibility exist.
Complainant maintains that she was discriminated against and/or subjected to harassment based on reprisal for having engaged in protected EEO activity when, on April 6, 2006, the Chief sent her a letter indicating that other employees had complained that she made sexually suggestive or explicit comments regarding her own attire.
To establish a claim of harassment an employee 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 (March 8, 1994).
We find that Complainant's claim of harassment and reprisal discrimination fails, because, among other things, she failed to establish that the conduct at issue was based on her prior EEO activity. Complainant can establish a prima facie case of reprisal discrimination by showing that: (1) she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Thus, Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)(citing McDonnell Douglas, 411 U.S. at 802).
Here, we find that Complainant failed to establish that she was subjected to an adverse action by the Agency. The letter sent by the Chief regarding allegedly inappropriate comments made by Complainant were in response to harassment reports the Agency received regarding Complainant's behavior. The Agency had an obligation to foster a culture whereby its employees could bring such misconduct to the attention of management and have confidence that such complaints would be addressed appropriately.5 Thus, the Agency was not only carrying out its responsibilities to its employees, but acting in accordance with the Commission's precedent when notifying Complainant of her behavior and requesting that she refrain from such conduct in the future. As such, we concur with the AJ that Complainant has failed to establish a prima facie case based on reprisal discrimination; therefore, she also does not meet element (1) of a harassment claim based on reprisal.
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 appropriately issued a decision without a hearing, and that Complainant failed to prove she was subjected to discrimination and harassment as alleged. The Agency's final order is hereby AFFIRMED.
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
___9/15/10_______________
Date
1 The record indicates that, despite numerous requests, Complainant did not provide an affidavit during the investigation.
2 Complainant had the right to appeal the removal action to the MSPB or by filing a grievance through the parties' collective bargaining agreement. Complaints of discrimination can be raised in either forum.
3 On appeal, Complainant stated that "[t]he Complainant has been very clear that she has not raised her removal before the EEOC and the Agency's position to the EEOC has been that it agrees with that stance." The Agency, we note also stated on appeal that, "the Agency does not believe the AJ's decision constitutes a ruling on the merits of the removal action. That matter is currently before an arbitrator." We disagree with the Agency's position that the AJ did not rule on the merits of Claim (2), however.
4 Complainant has been given several opportunities to provide evidence establishing the existence of genuine issues of material fact regarding Claim (1). In this regard, we note her failure to provide an affidavit, her response to the Agency's motion which focused on the arbitrator's decision regarding her removal and in her appeal brief.
5See Rogers v. Department of Defense, EEOC Request NO. 05940157 (February 24, 1995)(Commission found that a claim which arose from the agency's investigation of a complaint of harassment, failed to state a claim, since the agency was legally obligated to investigate a complaint of harassment).
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0120080366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080499