0120083800
08-20-2010
Lori A. Ably, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Lori A. Ably,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120083800
Hearing No. 551-2007-00133X
Agency No. HS 04-TSA-001308
DECISION
On September 8, 2008, Complainant filed an appeal from the Agency's August 6, 2008 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the reasons that follow, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented in this appeal are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing (summary judgment) and whether the AJ correctly found that the Agency did not discriminate against Complainant as alleged
BACKGROUND
Complainant contacted an EEO counselor on August 13, 2004, and filed a formal EEO complaint on December 21, 2004. Complainant alleged that the Agency discriminated against her, harassed her, and subjected her to a hostile work environment based on sex (female) and age (44), identifying the following events: (a) since May 2004, she was not allowed to function in an acting capacity as Lead; (b) in June, 2003, she was pinned against the wall by an Acting Screening Manager; (c) on May 13, 2004, she was berated for 60 minutes during a 90-minute meeting scheduled for her performance evaluation; (d) on July 30, 2004, she received a Letter of Warning (LOW) and reprimands under false circumstances; (e) she was treated differently than similarly situated co-workers with on-the-job injuries and threatened with citations for it; and (f) in early November 2004, she was informed that employees who filed false or multiple EEO complaints would be terminated. In EEOC Appeal No. 0120055586 (November 12, 2006), the Commission reversed the Agency's dismissal in part, and affirmed the dismissal as to one claim and the basis of retaliation. See EEOC Request No. 0520070150 (January 4, 2007).
Following an investigation, Complainant requested a hearing before an AJ. On March 13, 2008, the Agency filed a Motion for Findings and Conclusion Without a Hearing (Summary Judgment) (Agency's Motion). Complainant responded on March 24, 2008, filing a Motion to Quash and Deny the Agency's Motion, contending that the Agency's Motion was unfair, unreasonable, and not a proper motion.1 On July 23, 2008, the AJ issued a decision without a hearing, finding this matter appropriate for summary judgment. The AJ concluded that Complainant did not carry her burden to show that the Agency harassed or discriminated against her, as alleged.
At the time of the events giving rise to this complaint, Complainant worked as a full-time Transportation Security Officer (TSO) at the Ketchikan, Alaska airport. She began her service in November 2002, and remained in Alaska until November 2004, when she transferred to the Helena, Montana Regional Airport. On May 2, 2004, Complainant sustained an on-the-job injury to her back, returning to work part-time with medical restrictions on September 19, 2004, and to full duty on October 19, 2004.2 According to Complainant, the discriminating officials included the Deputy Federal Security Officer, at Ketchikan (M1), one supervisor (S1), and the Training Coordinator (TC) from the Juneau, Alaska state headquarters for the Agency.
The AJ found that issuance of a summary judgment decision was appropriate and proper in this matter, in that there were no genuine issues of material fact or determinations of credibility needed. He concluded that Complainant was not harassed or subjected to a hostile work environment, in that she did not show that the events identified took place, were sufficiently severe or pervasive to constitute illicit harassment, or were based on prohibited factors, i.e., her sex and age. We address each incident and the AJ's findings.
(a) since May 2004, she was not allowed to function in an acting capacity (as Lead):
Complainant claimed that she was not selected as an acting Lead after her return to full-duty work. M1 testified that those positions no longer existed and had been filled permanently in May-June 2004. Complainant offered no probative evidence that these positions existed as of October 19, 2004. The AJ found that the undisputed evidence showed that no employee was assigned to the position after May/June 2004.
(b) in June, 2003, S1 pinned her against a wall and yelled at her:
According to Complainant, she was violently assaulted by S1, who pinned her in a corner and screamed at her "under her [S1's] breath", so others did not hear or see the event.3 The AJ determined that the event was a discrete act unrelated and dissimilar to the other incidents cited as part of her claim of harassment, and, as such, it should have been presented to an EEO counselor within 45 days. See 29 C.F.R. � 1614.105(a)(1). Because Complainant did not raise this matter with an EEO counselor until August 13, 2004, the AJ dismissed this issue pursuant to C.F.R. � 1614.107(a)(2).
Complainant contended that she reported the event to M1 in a timely manner; however, her statements in the record belie her assertion, in that she refers to different times and circumstances when she asserted she did so. Further, M1 did not recall that Complainant reported this event to him.4
(c) on May 13, 2004, M1 berated her for 60 minutes during a 90-minute meeting scheduled to discuss her performance evaluation:
M1 requested that Complainant come to his office for her performance evaluation. She stated that M1 berated her, but M1 testified that Complainant did most of the talking. The AJ pointed out that Complainant did not provide details or describe M1's statements. In addition, the AJ noted that, even if true, the meeting did not constitute an adverse action, and Complainant has not shown that she experienced a harm or loss. He dismissed this event for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).5
(d) on July 30, 2004, M1 issued her a Letter of Warning (LOW):
On July 14, 2007, Complainant met with M1 in his office to discuss her return to work and work restrictions. In his in-box was a new ID card for another employee (ES). That evening, according to ES, Complainant called her to inquire if she had quit or been terminated and asked for the "details." When ES met with M1 the next day, she reported Complainant's telephone call, her fears as a result, and her wish to be protected from Complainant. On July 30, 2004, M1 issued Complainant a LOW for inappropriate actions in the past and currently, and directed her not to contact ES in the future. M1 noted that this event was the third time since Complainant began with the Agency that she had been cited for improper conduct, having received counseling memos in December 2002, when she made insulting and rude remarks about Native Alaskans, and in November 2003, when she was offensive and abusive toward a payroll clerk, whom she had contacted without his approval. At first, Complainant stated that her call to ES was "in mutual aid" to help and comfort a friend. Later, in her February, 2008, deposition, she denied that she had made the call. She filed a grievance on the LOW, which was denied at Step II, its terminal point.
The AJ considered the LOW to be discreet act in support of which the Agency articulated legitimate, nondiscriminatory reasons, which Complainant failed to demonstrate were pretext. The AJ found that the Agency was entitled to judgment as a matter of law.
(e) she was treated differently than similarly situated co-workers with on-the-job injuries:
Complainant asserted that two other employees (EK (male, 53) and EZ (female, 52)) had on-the-job injuries but were not removed from daily acting Lead rotations, as she was. The record reveals that EZ sustained an injury in mid-2003 and returned to work without medical restrictions; in addition, EZ worked the morning shift, which did not use Leads. The record shows that EK, following his injury in May-June 2004, was not allowed to act as Lead, because of his medical restrictions and modified-duty position. The AJ concluded that EK was treated the same as Complainant, thus annulling her claims of disparate treatment based on sex, and further found that Complainant failed to demonstrate pretext.
(f) in early November 2004, she heard that employees who filed false or multiple EEO complaints would be terminated:
Complainant contended that, at a training session on sexual harassment in early November 2004, she was threatened with termination by TC, when he stated that employees who filed EEO complaints would not receive raises. She also averred that M1 told her that employees who filed false or multiple EEO complaints would be terminated. While Complainant could not produce corroborating evidence or substantiation for this claim, the Agency's Office of Internal Affairs and Program Review investigated Complainant's allegation and found no evidence to support it.
The AJ found that Complainant did not show that these comments were made or that the events occurred as she claimed. Further, the AJ held that, even if someone had so stated, they were no more than proposed or threatened actions, which are not actionable. See 29 C.F.R. � 1614.107(a)(5).
CONTENTIONS ON APPEAL
Complainant argues that Agency managers failed to protect her from harassment during her tenure in Alaska. She complains about M1 and contends that the Agency fabricated documents. As evidence, she quotes selections from her personal journal. In addition, she repeats her contentions argued before the AJ.6
The Agency asserts that Complainant did not submit evidence to support any of her allegations or show that they took place, that she did not establish a prima facie case of harassment, in that the events she cited were not sufficiently severe or pervasive, and that she did not show that the alleged actions were taken because of her sex or age.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEO Management Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999).
Summary Judgment7
Initially, we consider whether the AJ properly issued a decision without a hearing on the record before us. The Commission's regulations provide that an AJ may issue findings and conclusions without a hearing (summary judgment) if "some or all material facts are not in genuine dispute and there is no genuine issue as to credibility." 29 C.F.R. � 1614.109(g).
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 does not sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate. In the context of an administrative proceeding under Title VII, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed. Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). After review, we find that issuance of a summary judgment decision was appropriate in this matter, in that no genuine issues of material fact or issues of credibility remained to be determined at a hearing, and the record was sufficiently developed for a decision.
Legal Framework
The Commission has jurisdiction over federal laws prohibiting discrimination against federal employees on the bases of, inter alia, sex (Title VII) and age (ADEA). Where there is no direct evidence of discrimination, the Commission usually examines claims of discrimination according to the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a Complainant to prevail, s/he 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, such as sex or age, was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case of discrimination or we assume so for purposes of further analysis, the burden of production shifts to the Agency to articulate a legitimate, nondiscriminatory reason(s) for its action(s). Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to the Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is Complainant's obligation to show, by preponderant evidence, that the Agency's reasons were not its true reasons and that it acted on the basis of a prohibited reason, i.e., here, sex or age. 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).
Age
Under the ADEA, it is "unlawful for an employer...to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a Complainant claims unlawful age discrimination, the Agency's "liability depends on whether the protected trait of age actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)) ("That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome."). Id.
Harassment
To support a claim of harassment/hostile work environment, Complainant must show that the actions complained of were taken because of or based on her protected status of sex or age and be sufficiently patterned or pervasive; usually, a single incident or a group of isolated, discrete incidents will not be regarded as discriminatory harassment. To demonstrate an abusive or hostile work environment, Complainant must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that are sufficiently severe or pervasive to alter the condition of the victim's employment." Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). 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.8 The harasser's conduct must 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).
To establish a prima facie case of harassment/hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome conduct involving her protected class(es); (3) the harassment complained of was based on the statutorily protected class(es); (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 Patterson v. EEOC, EEOC Appeal 0120053171 (June 8, 2007).
Complainant's Claims
Complainant alleges that she was harassed and subjected to a hostile work environment because of her sex or age, citing six events that occurred from June 2003 through November 2004, when she transferred from Alaska. Under our regulations, Complainants must bring their claims to the attention of an EEO counselor within 45 days of an alleged discriminatory event or the effective date of an alleged discriminatory personnel action. 29 C.F.R. � 1614.105(a)(1). The Supreme Court has stated, however, that where a Complainant alleges a hostile work environment, the claim will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. National Railroad Passenger Corp. v. Morgan 536 U.S. 101, 103 (2002). The Court further held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined "discrete discriminatory acts" to include employment actions that constitute separate actionable unlawful employment practices, such as termination, failure to promote, denial of transfer, disciplinary actions, or refusal to hire. Id.; see Ornellas v. Department of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
In the matter before us, we find that Complainant has failed to show that the Agency's actions constituted harassment or were sufficiently severe and/or pervasive to constitute illegal harassment or create a hostile work environment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing Harris v. Forklift Systems, Inc., supra (harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the Complainant's employment). Moreover, Complainant has not shown that the alleged 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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that the events described, even if taken together, do not constitute a hostile work environment claim that collectively constitutes one unlawful employment practice. See Morgan, 536 U.S. at 117.
Our review of the events cited, however, shows that several are discrete actions, i.e., issues (a) non-selection for acting Lead, (b) trapped by S1, (d) discipline, and (e) treated differently than co-workers with on-the-job injuries upon their return to work. These Agency actions are separate events that must be brought to the attention of an EEO counselor within 45 days before EEO contact. Thus, issue (b) is dismissed for untimely EEO contact pursuant to 29 C.F.R. � 1614.107(a)(2). For issues (a), (d), and (e), Complainant brought them to the attention of an EEO counselor in a timely manner, and we will examine them as claims of disparate treatment.
For purposes of further discussion, we assume that Complainant established a prima facie case of discrimination based on sex and age. Next, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions: as to (a), acting lead jobs were no longer available; as to (d), the LOW was justified based on her disciplinary record; and, as to (e), she was not treated differently than EZ or EK when she returned to work.
The burden returns to Complainant to demonstrate pretext. In the first instance, Complainant has not shown that the events occurred as alleged. Assuming they did occur, Complainant must show, through preponderant and probative evidence, that the reasons articulated by the Agency for its actions were not its true and real reasons, but the Agency took these actions in order to discriminate against her based on her sex or age. See St. Mary's Honor Center v. Hicks, above. Complainant has not demonstrated pretext or presented sufficient probative evidence9 that the Agency's explanations for its actions is not its true reasons, that they constituted a pretext for discrimination, or that the fact finder could reasonably conclude that the Agency unlawfully discriminated against the Complainant. See Reeves v. Sanderson Plumbing Prods., Inc., supra.
CONCLUSION
After a complete and thorough review of the record, including consideration of all statements submitted on appeal, whether specifically addressed or not, we find that the AJ's issuance of a decision without a hearing was appropriate, and that a preponderance of the record evidence does not establish that discrimination occurred as alleged. Accordingly, the Agency's Final Order is 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 tends 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
August 20, 2010
Date
1 On April 2, 2008, Complainant filed a further reply, a Motion to Quash, Deny Agency's Motion, and Motion to Amend Complaint to Add Retaliation. Complainant's second reply was not timely nor considered in the AJ's Acknowledgment Order.
2 Complainant does not claim discrimination under the Rehabilitation Act.
3 The record shows that Complainant reported actions she considered violations of Agency regulations by managers and co-workers to, inter alia, local and senior Agency management, the Postal Inspection Service (PIS), the Agency's Office of Inspector General, and the Office of Safety and Health Administration, Department of Labor. She opined that S1's antagonism was a result of information she sent to PIS that S1 and another TSO were engaged in an affair; PIS concluded that the affair was not inappropriate. At another time, Complainant asserted that S1 was angry and jealous that Complainant's performance was superior to hers (S1's).
4 There is a reference to a lawsuit that Complainant filed against S1 but no further information.
5 A Complainant is aggrieved when he or she suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
6 In her response to the Agency's Motion, Complainant contended that the Agency's Motion was unreasonable and improper and that extenuating circumstances, such as her current mental illness, warranted a hearing. In her filings and the deposition of Complainant taken by the Agency in February 2008, Complainant raised issues not before us herein, e.g., several non-selections, a withdrawn posting, claims based on disability, and a new investigation from the OIG's office in 2008. These claims relate to events that occurred after Complainant's transfer and are new claims. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004). Should she wish to pursue these claims, Complainant should contact an EEO counselor to begin the administrative process.
7 It appears that Complainant's representative has confused Summary Judgment with dismissal of a Civil Complaint under Rule 12, Federal Rules of Civil Procedure. The Commission's Regulations, 29 C.F.R. Part 1614, information on Summary Judgment, and other information is available on the Commission's website at http://www.eeoc.gov. See 29 C.F.R. � 1614.109(g); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chap. 7, � III.E. (Nov. 9, 1999).
8 See Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999).
9 Examples of probative evidence are sworn testimony of witnesses, documents showing the Agency's reasons, documents, and other material. Complainant's self-serving statements and selections from her personal journal do not constitute probative evidence.
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0120083800
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083800