01A33067
04-06-2004
Marcella M. Bodkin, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Marcella M. Bodkin v. Department of the Army
01A33067
April 6, 2004
.
Marcella M. Bodkin,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33067
Agency No. AFGERE0110B0880
Hearing No. 110-A2-8298X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Readiness Specialist, GS-09, at
the Readiness and Evaluation Branch, Office of the Deputy Chief of Staff
Operations (DCSOPS) located in Ft. McPherson, Georgia, filed a formal
EEO complaint on October 17, 1997, alleging that she was subjected to
harassment based on her race (Black) and national origin (Hispanic) when:
1) she was denied compressed time; 2) she had to sign for classified
documents; 3) she had to account for excessive absences from duty; 4)
she was charged with a loss and reoccurrence of data from a hard drive;
and 5) there were false statements made by co-workers about her.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
harassment. Specifically, the AJ found that even if complainant's
allegations were true, they did not rise to the level of severity to
support a claim of hostile work environment. The AJ also found that
there was no evidence that complainant was not able to do her job and,
in fact, complainant received an excellent performance appraisal from
her supervisor.
On appeal, complainant restates the same arguments previously made
during the investigation. Specifically, complainant contends that the
hostile work environment resulting from repeated harassment, intimidation
and coercion by management had a negative impact on her reputation and
credibility in the organization. Complainant attests that she received
this treatment because she is Black and Hispanic, and speaks differently
from others in the organization. Complainant also contends that she
was passed over for promotion at a time when every similarly situated
American-born employee received a promotion. Finally, complainant
contends that she sets forth sufficient evidence to support a retaliation
claim. In response, the agency requests that we affirm its final order.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting them, under a de
novo standard of review. 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 EEOC Management Directive for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (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 issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
To establish a prima facie case of hostile work environment harassment,
complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998). Upon review of complainant's claim of hostile
work environment, we agree with the AJ that complainant failed to
establish a prima facie case of harassment. Specifically, we find that
a reasonable fact-finder could not conclude that challenged incidents,
taken together, were sufficiently severe or pervasive to establish a
hostile work environment. We also conclude that complainant presents
insufficient evidence that she was singled out for this treatment because
of her protected classes. The record does not support a finding that
complainant was subjected to physical or verbal conduct based on her race
or national origin. Regarding complainant's allegation of retaliation
and her non promotion, we find that complainant raised this allegation
for the first time on appeal.
After a careful review of the record, the Commission finds that grant
of decision without a hearing was appropriate, as no genuine dispute of
material fact exists. We find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Further, drawing all justifiable inferences in complainant's
favor, we conclude that complainant failed to present evidence from which
a reasonable fact-finder could conclude that any of the agency's actions
were motivated by discriminatory animus toward her protected classes.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 6, 2004
__________________
Date