0120102243
09-21-2010
Mayra D. Lockhart, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Mayra D. Lockhart,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120102243
Hearing Nos. 510-2009-00325X, 510-2009-00039X
Agency Nos. HS 08-CBP-005268-100102, HS 09-CBP-006052-100104
DECISION
Complainant filed an appeal from the Agency's March 12, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
(1) Whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether the AJ properly found that Complainant was not subjected to unlawful discrimination.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer at the Agency's Mayaguez Port in Mayaguez, Puerto Rico. On May 29, 2008 and May 30, 2009, Complainant filed EEO complaints alleging that:
(1) She was subjected to a hostile work environment on the bases of race (African American) and sex (female) when, since December 2006, her Port Director:
a. Repeatedly inspected her physical appearance and her uniform, and accused her of not being in compliance with the Agency's Personal Appearance Standard (PAS);
b. Continuously asked her supervisors and coworkers for personal information about Complainant; and
c. Made comments and false statements concerning her and her work performance.
(2) The Agency discriminated against her in reprisal for prior protected EEO activity arising under Title VII when, on or about May 13, 2009, she was denied an exemption from rotational work assignments to San Juan, Puerto Rico.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and a notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on February 25, 2010. The AJ found that Complainant failed to establish that she was discriminated against or subjected to a hostile work environment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency submitted a statement on appeal.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.B. (November 9, 1999) (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 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").
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). After a careful review of the record, the Commission finds that the AJ appropriately issued a decision without a hearing, as Complainant failed to proffer sufficient evidence to establish that a genuine issue of material fact exists or that there are credibility issues such that a hearing on the merits is warranted.
Claim (1) - Hostile Work Environment
Harassment is actionable only if the incidents to which Complainant has been subjected were "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class and/or was engaged in prior EEO activity; (2) she was subjected to unwelcome verbal or physical conduct related to her membership in that class and/or her prior EEO activity; (3) the harassment complained of was based on her membership in that class and/or her prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Roberts v. Dep't of Transportation, EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct is to 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 (Mar. 8, 1994).
Complainant argued that she was subjected to harassment when the Area Port Director for Mayaguez (PDM) repeatedly inspected her physical appearance and her uniform and accused her of noncompliance with the Agency's PAS; continuously asked her supervisors and coworkers for personal information about her; stated "I can't believe you people" on one instance after she and her husband were driving in a car that hit PDM's parked car and drove away without informing him about the incident; and made false comments and statements regarding her work performance, such as alleging that she failed to conduct witness duties and lied after being asked why she had not performed the duties.
Upon review of the record, we find that Complainant failed to establish that she was subjected to a hostile work environment based on her race and sex. We find no persuasive evidence to show that a reasonable fact finder would find that any of the alleged harassment was motivated by unlawful animus towards her protected classes. For instance, Complainant alleged that PDM unfairly objected to her wearing sunglasses indoors and wearing unzipped or unbuttoned Agency issued outerwear. However, the record reflects that PDM was very strict about uniform guidelines, and Complainant was repeatedly notified of her noncompliance with the guidelines and the Agency's PAS. PDM averred that Agency guidelines address how to properly wear outerwear, that uniforms should be worn to convey a professional appearance, and that the question and answer portion of the PAS guidelines specifies that sunglasses may not be worn indoors. The relevant guidelines were provided in the record, and Complainant did not deny wearing sunglasses indoors. PDM confirmed that he discussed an incident with Complainant where she failed to witness seized items that were being placed in storage, but that she was never issued discipline regarding the incident. We further find that, even if all of the other events and comments occurred as alleged, there is insufficient evidence in the record to show that the cumulative incidents cited are sufficiently severe or pervasive to create a hostile work environment.
Claim (2) - Retaliation
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Upon review, we find that Complainant established a prima facie case of retaliation. Complainant argued that she was subjected to reprisal for filing her harassment claim in May 2008 when she was not exempted from completing a temporary rotation to San Juan. She alleged that commuting two hours to and from San Juan created a hardship for her due to her children's school schedule, and the Agency unfairly denied her request to delay her rotation for one month until her children finished the school year. We find that Complainant had previously engaged in EEO activity; officials were aware of her EEO activity; she was subjected to an adverse action when her request to be exempted from her temporary rotation to San Juan was denied; and a nexus existed between her protected activity and the adverse action because her request was denied after she had participated in protected EEO activity.
Once Complainant establishes a prima facie case of retaliation, the burden then shifts to the Agency to articulate legitimate, nondiscriminatory reasons for its actions. The Area Port Director for San Juan (PDSJ) submitted an affidavit averring that officers were needed in San Juan after May 1, 2009, because the company that ran a vessel that previously arrived at the Port of Mayaguez three times a week for 13 years moved its operations to San Juan. PDSJ averred that the Agency deployed officers from Mayaguez to San Juan on a rotational basis to work the passengers, cargo, and vehicles at San Juan. The Director of Field Operations averred that the move was sudden, and, as a result, there was a need to use experienced Mayaguez officers to conduct inspections in San Juan. PDSJ averred that, although Complainant had requested to be exempted from the San Juan rotation due to her child care needs, the request was denied because of personnel needs and the fact that the rotations were also unpopular with other employees that were facing similar issues, but nevertheless had to report to San Juan. PDSJ offered Complainant the opportunity to "swap" rotations with a few employees that were allowed to continue working in Mayaguez because they had won bids to do so; they worked in the Mayaguez Customhouse on a rotational basis; or they were exempt from the San Juan rotation for medical reasons.
Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's proferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we concur with the AJ's determination that Complainant failed to establish pretext. We find no evidence that the Agency's actions were motivated by discriminatory animus. Complainant did not submit a statement on appeal, and there is no evidence that she explored the option of swapping shifts with someone temporarily or that any similarly situated employees outside of her protected class made similar requests that were granted by management. We note that Complainant testified that PDSJ ultimately granted her permission to use annual leave on the days she was supposed to work in San Juan during the month in question.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue of material fact is in dispute. Complainant failed to present evidence that any of the Agency's actions were motivated by discriminatory animus towards her. We discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the record, 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 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 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
____9/21/10______________
Date
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0120102243
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102243