0120140599
01-25-2017
Lavonne E.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lavonne E.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120140599
Hearing No. 570-2011-00312X
Agency No. HS10FEMA00152
DECISION
On November 27, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 1, 2013, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision that Complainant did not prove that she was discriminated against or subjected to harassment as alleged.
ISSUES PRESENTED
The issue presented is whether the AJ properly issued a decision without a hearing finding no discrimination with respect to Complainant's formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Exercise Program Specialist at the Agency's Policy Branch of National Exercise Division in Washington, DC. On July 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (unspecified), and reprisal for prior protected EEO activity when:
1. On April 11, 2010, she was unable to travel on an authorized travel day because her supervisor required her to report to the office to discuss an administrative inquiry.
2. In June 2010, her supervisor provided her with a "Less than Expected" second quarter of Fiscal Year (FY) 2010 review with no prior counseling.
3. In June 2010, her supervisor unofficially removed all of her supervisory duties.
4 On or about June 21, 2010, her supervisor notified her that after the realignment of the National Exercise Division (NED), she would serve as the Remedial Action Management Program Doctrine Unit Manager for NED.
5. On or about June 22, 2010, her name did not appear on the Certificate of Eligibles for Vacancy Announcement Number (VAN) AN343426 (Support Branch Chief") and VAN AN340(S17 (Planning Branch) within her division.
6. On July 19, 2010, her supervisor discussed a Letter of Reprimand with her without prior counseling. In addition, on a number of occasions, her supervisor reprimanded her publically and privately in response to management decisions that she made independently.
7. On July 30, 2010, she received a graded and approved position description that she used to move ahead with her work plan. She was later informed that it was a mistake that precluded her from having a work plan for her FY 2011 quarterly performance review.
8. On September 10, 2010, her supervisor placed her under the supervision of an employee that she formerly supervised.
9. On September 16, 2010, she received another position description that had not been classified or approved by Human Capital and was told to have a work plan developed to discuss by September 20, 2010.
10. On September 20, 2010, she received a new organizational chart from her prior supervisor, who informed her that the organizational chart had been approved by upper management. When she asked for an electronic copy of the organizational chart, the Branch Chief told her that there were still some issues, so it could not yet be published.
11. On September 20, 2010, management excluded her from a Division management meeting.
12. On an unspecified date, she received a new position with distinctly different roles and responsibilities, for which she was provided an unofficial Position Description that had not been graded or approved by Human Capital.
13. On October 27, 2010, she received an unacceptable annual evaluation.
14. On October 27, 2010, she received an unacceptable annual review for FY 2010.
15. On unspecified dates;
a. Management removed her supervisory responsibilities.
b. Management removed her subordinate staff.
c. Management gave her unfavorable job assignments.
d. Management met with her subordinates without informing her.
e. Management criticized her performance.
f. Management scrutinized her work.
g. Management refused to talk to her.
h. Management removed her authority to sign travel authorizations.
i. Management took money out of her contract without informing her in advance.
j . Management denied her participation in three conferences.
k. Management promoted a less qualified male to a GS-15 position.
l. Management refused to allow her to continue to act as a supervisor;
16. On November 9, 2010, her supervisor denied her travel authorization for two weeks of training.
17. On an unspecified date, she sent multiple e-mails to her supervisor and the Branch Chief requesting reconsideration of her travel request. Her supervisor did not respond. The Branch Chief responded by agreeing with the supervisor. The Director refused to respond to her request to intercede concerning her travel.
18. On November 9, 2010, management removed her responsibility for devolution planning.
19. On November 29, 2010, she received a very condescending letter from the Branch Chief after she requested a face-to-face meeting with the Branch Chief to discuss concerns that she had about her supervisor.
20. On November 29, 2010, she received a very condescending letter from her supervisor restricting with whom she could communicate and about what she could communicate.
21. On unspecified date, she received her fourth quarter review with three "Less Than Expected" marks and a FY 2010 evaluation with one unsatisfactory mark in the critical performance area of completing tasks.
22. On an unspecified date, she received no award money for FY 2010.
23. On December 4, 2010, December 22, 2010, and January 6, 2011, management denied her leave under the Family Medical Leave Act (FMLA).
24. On December 10, 2010, management denied her a training opportunity.
25. On December 14, 2010, management charged her AWOL when she was at a doctor's appointment and provided a doctor's note.
26. On December 14-15, 2010, management denied her annual leave request.
27. On December 16, 2010, management placed her on leave restriction.
28. She was not paid until December 20, 2010, because her supervisor rejected her pay validation.
29. On December 20, 2010, management denied her request for FMLA leave.
30. On January 5, 2011, management issued her a proposed suspension.
31. On January 5, 2011, management told her that she was placed on a Performance Improvement Plan (PIP), effective December 9, 2010, and that she already missed two deadlines.
32. On January 6, 2011, management accused her of altering a medical form.
33. On January 21, 2011, management issued her two memoranda for the record regarding her conduct, dated October 6 and November 30, 2010.
34. On January 31, 2011, management gave her an "Unsatisfactory" rating on her first quarter FY 2011 appraisal.
35. On February 3, 2011, management denied her request to telework.
36. On February 11, 2011, management denied her the opportunity to attend a professional meeting on Risk Analysis.
37. On March 3, 2011, she was issued a memorandum to withhold her within-grade step increase that was awarded to her on January I 7, 2011.
38. On March 4, 2011, she submitted two requests for training, which her supervisor told her she would approve; however, her supervisor did not return the training requests to her.
39. On March 15, 2011, she was wrongfully charged for two periods of Absence Without Leave for February 28, 2011, when she served the fifth day of a suspension and on March 11, 2011, when she was activated to work in the National Response Coordination Center.
40. On unspecified dates, management denied her the opportunity to attend several working groups that were directly related to one of her tasks on her annual work plan.
41. She did not receive any follow up to a desk audit she requested.
42. Management failed to inform her of the status of her request for reasonable accommodation due to disability.
43. On February 22-28, 2011, management placed her on a five-day suspension.
44. On an unspecified date, management denied her administrative leave to prepare for a meeting with a mediator regarding her participation in the Alternative Dispute Resolution process.
45. Management never provided her with measurable goals other than unrealistic deadlines without constructive feedback.
46. On March 14 and, 17, 2011, she was denied compensatory/travel time for travel that occurred with a valid travel authorization while she attended a conference out of town.
47. On April 21, 2011, her supervisor did not provide her with the current feedback that she requested regarding a project in which she revised documents based upon her supervisor's feedback.
48. She received her 2nd quarter review for FY 2011 with three "Less Than Expected" marks.
49. On May 16-19, 2011, during the National Level Exercise, she was the only employee in the Division who was not given a supervisory or director's role, even though some contract support personnel and liaison officers were given supervisory or director's roles during the exercise.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but the AJ granted the Agency's motion for a decision without a hearing. The Agency argued that Complainant was not subjected to discrimination or harassment but that the actions taken by the Agency were based on Complainant's work performance and her inability to follow directions. A decision was issued on January 3, 2012.
The AJ found that assuming arguendo that the approximately 49 incidents listed above constituted objectively unreasonable conduct, Complainant would still be required to provide circumstantial evidence that she was targeted for the alleged conduct because of either her sex, disability or in reprisal for protected activity in order to survive summary judgment. In regards to Complainant's gender based claims, the AJ found that she failed to provide circumstantial evidence which created an inference that she was targeted for the alleged harassment because she is a woman. In order to support her allegation, Complainant alleged that no male employees were put on AWOL; suspended; denied leave or put on leave restriction. However, the AJ found that Complainant failed to provide specific evidence which demonstrated that she was similarly situated to the male comparators or that discriminatory animus was involved.
In regards to Complainant's disability claims, she alleged she was subjected to disparate treatment and that the Agency failed to grant her accommodation request. However, both Managers stated during the Agency's EEO investigation that they did not know Complainant was disabled. The AJ found that no evidence was provided by Complainant which demonstrated that similarly situated non-disabled individuals were treated differently by management and/or that the alleged responsible management officials harbored a bias against her because she was disabled. Moreover, when afforded the opportunity to clarify her accommodation request, Complainant stated generally that she requested accommodations during 2010 and 2011, but failed to identify specific dates or to provide a description of the documentation or conversations she relied upon in support of her allegation.
In regards to Complainant's retaliation claim, Complainant alleged that she was targeted for the alleged harassment following her opposition to the gender based harassment of one of her subordinate employee's caused by a male contractor. Complainant alleged that management began a campaign of harassment that started during April 2010 and continued through May 2011 following the filing of her informal and formal EEO complaints during April and June 2010. The AJ found that other than the fact that the alleged harassment occurred after Complainant's protected activity, she provided no direct or circumstantial evidence which created an inference that either her supervisor or any other alleged responsible management actually harbored a retaliatory attitude against her because of her prior EEO activity.
The AJ found that there were no material facts at issue and that other than Complainant's allegations she did not demonstrate that she was subjected to discrimination and/or harassment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred in issuing a decision without a hearing. Complainant indicates that while some cases lend themselves to summary judgment this case does not because she alleged a pattern of retaliatory harassment that occurred over several years. Complainant contends that her harassment claims generally boil down to who is more credible therefore it was inappropriate for the AJ to summarily grant the Agency's motion to dismiss Complainant's request for a hearing. Complainant contends that prior to engaging in EEO activity she had a stellar career in the government.
In response, the Agency contends that while Complainant alleges that there are disputed issues of fact she does not cite to credible evidence supporting her conclusions. Rather the evidence demonstrates that Complainant was a poor performer, behaved in a contentious manner, badgered her supervisors, and refused to follow instructions. The Agency also argues that the evidence shows that her supervisors acted reasonably, making every effort to respond to her daily requests for assistance. The Agency maintains that the record establishes that the AJ's decision and its final order are appropriate, and should be affirmed.
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) (providing that an administrative judge'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
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). In the instant case, we find that the record was adequately developed and no material facts are at issue. Accordingly, we find that the AJ properly issued a decision without a hearing.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that, assuming arguendo, Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely the Agency showed that: Complainant's duties were taken away; she was not allowed to go to various trainings; she was not allowed to take leave; she was disciplined; and she was given lowered performance appraisals because of her poor work performance and her inability to following directions. We find that other than broadly disagreeing with the Agency, Complainant provided no evidence that showed that the Agency's reasons were pretext.
Likewise, she presented no evidence that even raised a genuine issue as to whether she requested a reasonable accommodation. As noted above, she was given the opportunity to clarify her accommodation request, but Complainant could only generally state that she requested accommodations during 2010 and 2011. She did not identify specific dates or provide a description of the documentation or conversations she relied upon in support of her allegation. 2
With regard to Complainant's allegation that she was subjected to harassment, upon our review we find that the incidents that she complained of were not severe or pervasive enough to establish a hostile work environment. For the most part, we find these incidents were routine supervisory interactions and other disagreements that often occur in the workplace and which simply do not rise to the level of unlawful harassment.
Further, regarding Complainant's contentions on appeal we find that other than her conclusory statements that discrimination and harassment occurred she did not provide any evidence which proved her allegations.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's decision without a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
__1/25/17________________
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 We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant'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.
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