0120080239
01-19-2010
Kathy M. Thomas, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Kathy M. Thomas,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120080239
Hearing No. 531-2006-00181X
Agency No. 062079
DECISION
On October 12, 2007, complainant filed an appeal from the agency's
September 10, 2007 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 Lead Program Evaluation and Risk Analyst at the agency's Office
of Program Evaluation and Risk Analysis (OPERA) in Washington, DC.
Complainant filed an EEO complaint on November 26, 2005. In its letter
of acceptance, the agency defined complainant's complaint as alleging
that complainant was discriminated against on the basis of sex (female)
and in reprisal for prior EEO activity when:
1. From August through September 2005, complainant's coworker made
inappropriate comments to her that were of a sexual nature;
2. On September 15, 2005, complainant's coworker made an
inappropriate comment to her that was sexual in nature; and
3. On November 1, 2005, complainant received her annual appraisal
(for 2004 - 2005) with an overall evaluation that had been lowered from
"Outstanding" to "Exceeded" expectations.
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. Over complainant's objections, the AJ assigned to
the case granted the agency's November 21, 2006 motion for a decision
without a hearing and issued a decision without a hearing on August
29, 2007.
In his decision, the AJ found that the material facts pertaining to
complainant's complaint were not in dispute. The AJ found that with
respect to complainant's claim of sexual harassment, that on September
15, 2005, complainant asked E1 if co-workers were taking him out to lunch
for his birthday. E1 replied "yes" and asked complainant "if she wanted
to come." When the complainant declined, E1 said words to the effect "I
didn't ask if you wanted to go, I asked if you wanted to come." E1 then
left the office for lunch. The AJ noted that on September 19, 2005,
complainant spoke with E1 alone about the comment and he apologized to
complainant for his comment and said he was sorry he offended a friend
and asked if he could do anything to make it up to her. The AJ noted
that complainant reported both the incident on September 15, 2005, and
her subsequent discussion with E1, to her first line supervisor, S1,
on September 19, 2005. The AJ found that complainant did not report
any of the alleged August/September 2005 comments at issue to agency
personnel prior to September 19, 2005. The AJ noted on the very same
day he learned of the comment, S1 spoke with E1 and informed him that
his September 15, 2005 comment was inappropriate. S1 instructed E1 not
to speak with complainant except for matters involving work and to close
his door to keep other employees from congregating in front of his office.
The AJ found that S1 documented his discussion with E1 and also notified
S2, S1's immediate supervisor.
The AJ found that on September 20, 2005, complainant sent an electronic
mail message to E1, expressing her interest in attending a luncheon
E1 was coordinating for a coworker. E1 told complainant that he had
received her message and offered to give her a ride to the luncheon.
Complainant declined. Later that day, E1 asked to borrow some change
from complainant. The AJ found that complainant reported these
interactions to S1 and asked that E1 be instructed to leave her alone.
The AJ noted that S1 notified S2 of complainant's report and S1 spoke
to E1 and told him not to have any contact with complainant. The AJ
noted that a few days later S1 also switched offices with E1 to move E1
from close proximity to complainant's cubicle so as to avoid any further
unnecessary interactions between E1 and complainant.
On October 21, 2005, an EEO Counselor informed S2 of complainant's
decision to file a complaint regarding the September 15, 2005 incident
and also informed S2 of other incidents involving E1 and other OPERA
employees, some of which were sexual in nature. The next day, a Saturday,
S2 called E1 at home and counseled him regarding his conduct in the
workplace and informed E1 regarding the agency's policy against sexual
harassment and notifying him that such conduct would not be tolerated in
the workplace. S2 documented the counseling session with E1. S2 notified
S3 regarding E1's conduct. Subsequently, S3 conducted a third counseling
session with E1 on October 24, 2005, wherein E1 was again advised that his
conduct was unacceptable. S3 also suggested that E1 withdraw his name
from consideration for a detail that would include supervisory duties
at the GS-15 level. E1 agreed to withdraw his name from consideration.
S3 also documented his counseling session with E1.
Significantly, the AJ noted that no incidents of contact or harassment
have occurred between E1 and complainant, following the two interactions
on September 20, 2005, which, the AJ noted, were precipitated by
complainant's electronic mail message to E1 regarding a luncheon.
The AJ considered that prior to September 15, 2009, E1 and complainant
shared a relationship at work that included undisputed friendly acts.
The AJ noted that complainant had given E1 a hug on prior occasions, had
given E1 a swimsuit calendar for his birthday, had bought E1 a souvenir
for E1 while on travel, and had shared popcorn with him on more than
one occasion. Such conduct, the AJ found, did not serve to put the
agency on notice that an intimidating or hostile environment existed in
the workplace. The AJ found that the agency did not have notice prior
to September 19, 2005, that complainant believed that she was being
subjected to sexual harassment. The AJ found that after complainant's
September 19, 2005 report, the agency took appropriate corrective action
to address the conduct complainant found offensive and to prevent its
recurrence. The AJ found once complainant reported E1's conduct to
S1, S1 counseled E1. The AJ noted when complainant reported that E1
continued to interact with her, despite being instructed not to do so,
E1 was again counseled by all three supervisors, S1 and S2, and later,
by S3, each of whom documented the counseling session.
The AJ therefore found that even if it is assumed that the incidents
complainant described created a sexually hostile work environment,
complainant did not establish any basis for imputing liability to the
agency. The AJ found that the undisputed evidence established that upon
notice to the agency, the agency took immediate and appropriate action
to end the offensive conduct and to prevent its recurrence.
Regarding claim (2), the AJ assumed, for the sake of argument, that
complainant had established a prima facie case of reprisal. Even so,
the AJ found that the agency articulated legitimate, non-discriminatory
reasons for the rating it assigned to complainant's 2004-2005 performance
appraisal. Specifically, S1 and S2 believed the appraisal reflected
complainant's performance in her new position as a GS-14 lead analyst.
The AJ noted the following undisputed facts. Complainant was promoted
from a GS-13 to GS-14 Lead position during the rating period at issue and
that complainant's duties now included working on more than one project
at a time and working to improve the effectiveness of OPERA operations.
S1 noted that complainant did not volunteer for additional projects and
did not make any presentations to her peers during the rating period as
she could have. The AJ found that both S1 and S2 articulated reasons
for the rating that complainant received and that complainant did not
show that the reasons cited were a pretext to mask discrimination.
The AJ did not find that complainant showed the agency's rating of her
performance was in any way motivated by reprisal.
The AJ found that the drawing every inference in complainant's favor,
that complainant had not established that she was subjected to sexual
harassment or reprisal as alleged in her complaint. The agency
subsequently issued a final order fully implementing the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
On appeal, complainant states that material facts remain in dispute
such that the AJ's decision to render his decision without a hearing was
improper. Complainant argues that the AJ failed to consider the comments
of E1 as creating a hostile work environment and did not appropriately
consider a memorandum that appeared to be authored by S3, the purpose
of which was to defame complainant's work and personality to S1 and S2,
so that her appraisal would be lower than "Outstanding." Complainant
further states that S1 failed to communicate any expectations he had that
she did not fulfill prior to the time he issued her appraisal on November
1, 2005. Complainant argues that S1's justification of his rating based
on uncommunicated expectations is a pretext for reprisal discrimination.
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. Department of Defense, 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).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a prima facie case of sexual harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that she is a member of a statutorily protected
class; (2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that
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) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982). 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 (March 8, 1994).
In the instant case, we find the AJ properly summarized the undisputed
material facts and properly issued his decision without a hearing.
With regard to complainant's contention on appeal that the AJ failed to
consider the comments made by E1 in August - September 2005, we find the
AJ considered these comments in addition to the comment made by E1 on
September 15, 2005, as one claim of sexual harassment rather than as two
separate claims as set forth in complainant's complaint. Specifically,
we find that the AJ properly found that upon notice to the agency, that
is, when complainant complained to S1 that E1 had conducted himself
in a manner that complainant found sexually offensive, S1 immediately
initiated action reasonably calculated to address the alleged harassment
and to prevent any further occurrences. Specifically, S1 counseled E1,
who acknowledged the conduct of which complainant complained, explained
the agency's policy regarding sexual harassment and identified the
unacceptable conduct. Based upon E1's response, and because this
was the first time that S1 had been made aware that E1 had engaged in
conduct that complainant found offensive, S1 directed E1 to communicate
with complainant only for business-related reasons. When complainant
reported that complainant had casually interacted with her the next day,
E1 again received counseling. Thereafter, S1 and S2 relocated E1's office
to further reduce the opportunity for any non-work related contact between
E1 and complainant. Moreover, E1 received additional counseling from S3.
As the AJ noted, no further incidents have occurred between complainant
and E1. We find the AJ properly found that complainant had failed to
establish a basis to impute liability for E1's actions to the agency.
With respect to claim (2), we concur with the AJ that S1 articulated
legitimate, nondiscriminatory reasons for his appraisal of complainant's
performance and that complainant did not show that S1's actions were
motivated by reprisal. S1 rated complainant at "Exceeded" expectations
based on the fact that complainant did not volunteer for additional
projects and did not make any presentations to her peers during the
rating period. We find that complainant did not rebut the agency's
articulated reasons and did not show that reprisal more likely than
not was the reason she was rated as "exceeds" and not "outstanding"
for the rating period in question.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision, finding no discrimination.
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
January 19, 2010
__________________
Date
2
0120080239
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120080239