0120123281
05-08-2013
Mary Lou Midgley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Mary Lou Midgley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120123281
Hearing No. 520-2007-00447X
Agency Nos. 200H-0561-200610-1967 and
200H-0561-200610-2389
DECISION
Complainant filed an appeal from the Agency's July 31, 2012 final order concerning two of 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the VA New Jersey Healthcare System in East Orange, New Jersey.
On May 13, 2006, she filed the first of the two formal EEO complaints under review. On May 16, 2006, three days later after she filed the first complaint, she initiated EEO contact on the second complaint which was deemed formally filed on July 7, 2006.
Complainant's claims may be characterized as alleging that, from December 25, 2005 to December 2006, management and several co-workers subjected her to an ongoing discriminatory hostile environment on the bases of race (Caucasian), national origin (non-Hispanic), disability (hearing impairment), and retaliation due to her prior EEO activity. She claims that she is the only white female in her work area with a hearing loss and was treated differently than persons of colors and those without prior EEO activity. Specifically, her complaint alleged that after her December 25, 2005 settlement, her immediate supervisor, second level supervisor, acting supervisors and several co-workers subjected her to an ongoing hostile environment, consisting of at least 46 incidents. These incidents include a reprimand, placement on AWOL, verbal harassment, unwarranted scrutiny and oversight, overscheduled assignments, denial of leave, denial of reasonable accommodation (access to special phone equipment and disability leave), threats, including mocking by a management official, and an involuntary reassignment.
Procedural History
During the investigation of her complaint, Complainant sought to add sex as a basis. On August 16, 2006, the Agency accepted most of her claims, but did not accept the claims of sex discrimination. Meanwhile, on September 28, 2006, the Agency assigned an investigator to investigate the first complaint. Complainant submitted additional information and again requested to amend her complaint. The record shows that she requested a hearing on the first complaint on November 26, 2006. On December 7, 2006, an investigator was assigned to investigate the second complaint. The Report of Investigation (ROI) on the second complaint was submitted on July 10, 2007. On July 17, 2007, Complainant requested a hearing.
The Agency moved for summary judgment in 2010 on both complaints. Complainant opposed the motion in October 2010. Two years later, the AJ consolidated the complaints and entered summary judgment, as detailed below.
Allegations / Facts
The investigative record shows that Complainant has worked for the Agency as a Motor Vehicle Operator since 2002. Her duties require her to drive veterans to their scheduled appointments and deliver supplies between various facilities. She reports to a supervisor who sets the schedules. Complainant had the same immediate supervisor (Hispanic male) ("former supervisor") from 2002 until his retirement in July 2006. After his retirement, she reported to the Program Coordinator (Hispanic female) ("S1"), who had been her second-level supervisor. The Chief of the Facilities Management Services (Italian American male) ("S2") was her third level supervisor. A co-worker (African American male) ("S3") also acted, on occasion, as her supervisor.
Due hearing loss as a result of childhood measles, Complainant wears a hearing aid at all times. The record shows that her hearing loss was described as a moderate to severe sensor neural loss, which is a condition that results in her having difficulty with conversational speech and increased difficulty in noise and distance. She informed her former supervisor of her hearing loss. S1 testified that the former supervisor had informed her of Complainant's hearing impairment. The record also shows that the Agency requires a medical examination which included a hearing test and had provided Complainant with special equipment (adapted telephone) for her hearing impairment. Complainant asserts that her disability does not impact her ability to perform the essential functions of her position.1
The record shows that Complainant has engaged in prior EEO activity which was known by management. In February 2005, Complainant filed a formal complaint, referenced as Agency Case No. 200H-0561-2005100125, in which she named S1 and S2 as the responsible officials. The record shows that they were aware of this complaint. The complaint was settled in December 2005. As part of the December settlement, Complainant agreed to write down any concerns in Reports of Contact and submit them to a named official. She filed reports on almost a daily basis. According to Complainant's deposition, since her original EEO settlement, "everything became more hostile . . . on a daily basis."
On December 29, 2005, Complaint asked S1 to repeat something at a staff meeting and was written up for being disruptive. The record shows that four days after the settlement agreement was signed, S1 held a staff meeting. S1 averred that, "I had a brief meeting and I told everybody the information I needed to tell them." Complainant was present at the meeting. Complainant asked S1 to repeat something that S1 had said. S1 averred that "[Complainant] turned around and she said she wanted me to repeat it. I turned around and I told her, 'Come into the office and I'll repeat it to you'." Complainant averred that the supervisor added that Complainant should bring a tape recorder.
One witness wrote that Complainant, "became a little agitated and started opening her locker, appearing not to be paying attention to information being given. . . [Complainant] seems not to understand the information and became a bit loud and insubordinate in her tone and presentation in speaking with [S1]." The witness said that Complainant was told, "she needed to write down everything she said instead of blabbing out things". S1 denied that she told Complainant that she should bring a tape recorder or asked her why she did not write the information down.
S1 asked Complainant to come into the office, and S1 averred that Complainant refused and was "loud and disrespectful." Thereafter, the Supervisor approached Complainant's coworkers and asked them to provide her with their statements concerning Complainant's conduct. S1 gave the collected statements to S2, who conducted an investigation.
Complainant disputes the accuracy of the statements of S1 and the coworkers concerning her conduct on December 29. She averred that S1 has a "habit of telling people what to write." S1 concedes telling the co-workers in Complainant's presence "thank you, that's what a team player does around here."
In January 2006, Complainant received a proposed reprimand for being disrespectful and insubordinate to S1 as a result of the December 29 incident.
On March 10, 2006, Complainant was given a note by S1 which purportedly was written by the management of a nursing home at which she picks up patients, complaining about Complainant. The nursing home manager denied making any complaint against Complainant and was not aware of any complaint, according to Complainant's testimony.
On March 28, 2006, Complainant was issued the actual letter of reprimand based on the December 29, 2005 incident. That letter said that her behavior was totally unacceptable and could lead to her removal and that the letter would stay in her folder rot a period of up to three years depending on Complainant's future behavior and attitude. (AJ, 7). Complainant disputes that she was insubordinate.
On or around April 6, 2006, Complainant and a co-worker engaged in a verbal confrontation, resulting in the police being called and both employees having to go to court. On or around June 29, 2006, S1 charged Complainant with four hours of AWOL when she reported to work four hours late because she had to appear for the court date. While both employees had to go to court, the coworker (who is not of Complainant's race and had no prior EEO activity) was not charged with AWOL and Complainant did not believe she took leave for the time. Complainant states that she had previously told S1 that she had to go to court on that date. The Agency policy allows court leave to be granted "when an employee testifies in an unofficial capacity on behalf of a private party in connection with any judicial proceeding to which the U.S., or a State or local government is a party." AJ, page 12, footnote 11.
On July 6, 2006, S1 allegedly removed the computer and the telephone which Complainant used from the break room. At some point, the special phone that was provided to her was taken away. Complainant asserts that her supervisor was intentionally trying to stop Complainant from preparing her EEO claims and acted out of retaliatory pettiness.
She claimed that S1 assigned duties that could not be performed in the allotted time, while her co-workers (who were not White) sat in the break area. This caused veterans to have to wait. One witness averred that he observed this happening. She claims that S1 overscheduled her patient trips and specified, as examples, four dates in June and July.
On August 20, 2006, Complainant alleges she overheard one co-worker say to another, "I'm gonna stink her a**," as they walked pass her. On August 22, 2006, Complainant claims S1 allowed employees to direct "negative comments" towards Complainant during a staff meeting. She claims that S1 yelled at her and gave assignments that could not be performed in the allotted time or gave assignments that required Complainant to work overtime and be caught in rush hour traffic. She claimed that her supervisor over-scheduled her work assignment out of pettiness and that employees of color with no disabilities were not treated this way.
A witness testified that he observed that Complainant was being harassed constantly by S1 and S3, and that he heard S1 say that, "you'll break before I will." The record is unclear as to whom that statement was directed. Complainant testified that S1 told her that she intended to get rid of Complainant. Complainant also alleges that she was referred to several times as "the white girl" by S1 and an acting supervisor (S3). She also alleges that on or around May 9, 2006, S3 mocked Complainant's hearing impairment by mimicking her saying, "What did you say? I can't hear you". "Would you repeat that?"
On September 13, 2006, S1 caused Complainant to be "rushed all day" and allegedly, on September 14, 2006, she locked Complainant in the garage. On October 5, 2006, S1 sat in her car and glared at Complainant.
On October 16, 2006, Complainant was notified that she was being involuntarily reassigned to the Lyons Campus, effective November 13, 2006. On November 30, 2006, following an accident, S1refused to grant her leave after she suffered an accident, which caused her to have to work, against her doctor's orders, with a herniated disc.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ) for both complaints. The AJ consolidated the complaints and issued a decision without a hearing finding no discrimination.
AJ Decision
Based on her review of the report of investigation, the AJ determined that "there are no genuine issues of material fact in dispute and therefore, this complaint is appropriate for a decision without a hearing."
The AJ found that, "Complainant fails to establish a prima facie case on the basis of national origin because she has not identified her national origin." AJ, 13. The AJ recognized that Complainant "alleges continuous and persistent discrimination against her . . . of the basis of . . . Race as a white person discriminated against by persons of color and Hispanic origin." AJ referencing 102389.2 The AJ reasoned that "because Complainant has failed to state what her national origin is and there are no pertinent facts alleged for me to determine whether discrimination took place because of Complainant's national origin I find it necessary to DISMISS all claims brought under the basis of national origin." AJ, 13. Regarding the adequacy of the record, the AJ acknowledged that the record was missing important documentation on national origin. Specifically, the AJ stated "more notably, the investigator also overlooked this important fact and failed to request any determinative evidence...As a result the record is silent in regards to important facts regarding the make-up of the employee pool for the purposes of comparative analysis based on national origin." The AJ found that "because there are no pertinent facts alleged for the AJ to determine whether discrimination took place because of Complainant's national origin, I find it necessary to DISMISS all claims brought under the basis." AJ, 13.
With regard to Complainant's reprisal claims, the AJ determined that all charges of a hostile work environment on the basis of reprisal "fail because Complainant has presented evidence that the hostile work environment predates her EEO activity and therefore she cannot show the proper nexus existed between her EEO activity and the hostile work environment [emphasis in the original]." AJ, 10.
The AJ also reasoned that while it seemed clear that Complainant felt a high level of hostility in her work situation she did not show how this hostility is related to her race or disability. Rather the hostility appears to be based upon personal conflict between Complainant her supervisors and co-workers. AJ, 16. The AJ then stated that, "even if the incidents were discriminatory, they do not rise to the level of a hostile work environment because they are neither sufficiently frequent nor severe." The AJ found that the number of alleged verbal abuse incidents ("if averaged these remarks would equate to fewer than three verbally abusive statements made to Complainant each month). AJ, 17.
The AJ acknowledged that Complainant and supervisor have different versions of the December 29, 2005 meeting. The AJ acknowledged that Complainant stated that the Reports of Contact completed by her co-workers are not accurate, but concluded that "Complainant offered nothing to corroborate this allegation, nor does she indicate that [S1] had any reason to instruct several witnesses to lie shortly after the incident took place." AJ at footnote 9.
The Agency's final action implemented the AJ's decision finding no discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
We must 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). 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. Further, 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).
On appeal, Complainant argues that the AJ erred in finding no genuine dispute of material fact as to whether the supervisor's actions were based on her race, disability or were in retaliation for her EEO activity. She maintains that the AJ erred in finding that she could not establish pretext if the record showed prior hostility. She claims that there are genuine disputes of material fact since Complainant offered testimony that she was not insubordinate and that she was wrongfully charged four hours of AWOL on June 29. Further, she argues that the AJ erred when she "took it upon herself to resolve the claims" by weighing conflicting evidence. Complainant argues that the AJ abused her discretion in dismissing her national origin claims for lack of specificity. Finally, Complainant argues that the record is inadequate to resolve whether she unlawfully endured reprisal, retaliation, hostility, harassment and discrimination not only from management, but also her co-workers.
In response, the Agency submits that the AJ's decision was supported by the overwhelming evidence that Complainant was insubordinate, that it appropriately charged her AWOL, that management and Complainant's coworkers were unaware of her hearing impairment, that the 46 incidents were not severe or pervasive, that the AJ properly dismissed her national origin claims and, in light of the evidence, the AJ applied the correct legal principles and reached the appropriate conclusion finding no discrimination or retaliation.
After careful review of the record and consideration of the arguments on appeal, we find that the AJ erred in concluding that there remained no genuine issues of material fact in this case that warranted a hearing.
As an initial matter, the AJ erred in concluding that evidence of hostility prior to Complainant's February 2005 EEO activity, as well as evidence of her union activity, precluded her from establishing a claim of retaliation. ("All charges of a hostile work environment on the basis of reprisal fail because . . . the hostile work environment predates her EEO activity and the hostile work environment.") In so ruling, the AJ applied too mechanistic of an analysis. She failed to recognize that employment actions can happen for multiple reasons, some of which may be discriminatory or retaliatory. Moreover, her 2005 EEO complaint could also have escalated the already rocky relationship between Complainant and her management. The December 29 incident that resulted in a formal reprimand, for example, happened just days after Complainant's 2005 EEO complaint was settled. Where credibility is at issue, as here, it is better to hold an evidentiary hearing to provide the parties with the opportunity to present their strongest cases. This decision unfairly deprived Complainant of that opportunity.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vincent, 477 U.S. 57, 67 (1986), that discriminatory harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23.
In this case, Complainant has alleged nearly 50 incidents of what she believes evidences ongoing retaliatory and discriminatory animus towards her race, national origin and her hearing impairment. Complainant presented evidence that she was treated more harshly in terms of her assignments, leave requests, scheduling and the hostility directed toward her than other employees who were not hearing impaired or who had no prior EEO activity. At least one other witness supported her claim that management officials referred to Complainant as "white girl" and were involved in mocking Complainant's hearing and issuing discipline when she asked that a statement be repeated at a meeting because she did not hear the statement. There is also a statement that S1 stated her intent to get rid of Complainant. Another witness supported Complainant's claim that she was treated more harshly and over-scheduled, while others were not. Finally, the record shows that Complainant was involuntarily reassigned to a less desirable location and denied leave.
The record shows that the parties dispute the legitimacy and reasons behind the issuance of the reprimand, the imposition of AWOL, the denial of leave, and the involuntary reassignment. There is also a dispute raised by the Agency as to whether management and coworkers were aware of Complainant's hearing impairment or motivated by her disability. Considering the facts in the light most favorable to Complainant, this is enough to create a genuine issue of fact.
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). Consequently, we find that the AJ erred when she concluded that there was no genuine issue of material fact in this case.
In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and Complainant, herself. Therefore, judgment as a matter of law for the Agency should not have been granted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC New York Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
May 8, 2013
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. As it is undisputed that Complainant is an individual with a significant hearing impairment, for purposes of our analysis, we will assume that Complainant is an individual with a disability.
2 We construe Complainant's claim to include discrimination as a Caucasian (non-Hispanic). The Commission recognizes Hispanic and non-Hispanic as national origin categories.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
10
0120123281
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123281