0120110548
09-13-2012
Miguel A. Olba, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Miguel A. Olba,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110548
Hearing No. 510-2010-00067X
Agency No. 200I-0546-2009101937
DECISION
On October 18, 2010, Complainant filed an appeal from the Agency's September 22, 2010, final order concerning his 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues on appeal are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency subjected him to harassment and constructively discharged him based on sex (male), national origin (Hispanic), and reprisal for prior EEO activity, and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse in the Residential Psychiatric Unit at the Agency's Veterans Affairs Medical Center in Miami, Florida. Complainant began working for the Agency on December 21, 2008.
On May 18, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), and reprisal for prior protected EEO activity when:
1. the Agency constructively discharged him by forcing him to resign effective February 27, 2009; and
2 the Agency subjected him to discriminatory harassment when:
a. in February 2009, a co-worker accused Complainant of mistreating patients and of not behaving in a professional manner;
b. in February 2009, the co-worker failed to inform Complainant about a death in the family of one of his patients;
c. on February 10, 2009, personal items and $30.00 were stolen from Complainant; and
d. on February 27, 2009, the Agency constructively discharged Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 2, 2010, the Agency filed a Motion for Summary Judgment/Decision without a Hearing. Complainant filed a Response in Opposition to the Agency's Motion on June 7, 2010. The AJ issued a decision without a hearing on September 3, 2010.
In her decision, the AJ found that, on the evening of February 10, 2009, Complainant looked for his lunch, a binder, and $30.00 in cash that he believed were in a supervisor's locked office. After Complainant discovered that his items were not there, he accused a co-worker (C1) of stealing them. Complainant screamed at C1 and, after his lunch was recovered, continued to yell at her. Some patients were upset and unable to sleep, and witnesses described Complainant's behavior as loud, angry, inappropriate, uncalled for, and scaring the patients. On February 24, 2009, the Agency notified Complainant that it would terminate his employment effective March 13, 2009.
The AJ further found that, after learning of his termination, Complainant repeatedly telephoned a co-worker (C2) who had witnessed the incident between Complainant and C1. Complainant screamed at C2 and called him a coward. Because of Complainant's conduct, the Agency advanced Complainant's termination date to February 28, 2009. During a February 27, 2009, termination meeting, management, Complainant, and Complainant's representative agreed that Complainant would resign in lieu of termination. Complainant submitted a February 27, 2009, letter citing family matters as the reason for his resignation.
Noting that Complainant acknowledged that he had not engaged in prior EEO activity, the AJ concluded that Complainant had not established a prima facie case of reprisal discrimination. The AJ further concluded that the Agency had articulated a legitimate, nondiscriminatory reason for issuing the termination letter. The AJ found that it was undisputed that there had been a verbal altercation between Complainant and C1, that Complainant had refused to calm down, and that his conduct continued in spite of its adverse effect on patients. In addition, after learning of his termination, Complainant continued his unprofessional behavior by calling C2 several times per day.
The AJ also found that Complainant had not established a claim of constructive discharge due to a hostile work environment. She concluded that the undisputed evidence established that Complainant caused the hostility that occurred. Moreover, assuming Complainant's articulation of the incidents to be true, the AJ found that the incidents were not sufficiently severe or pervasive to rise to the level of harassment.
CONTENTIONS ON APPEAL
Complainant raises no arguments on appeal. The Agency urges the Commission to affirm its final order and the AJ's finding of no discrimination.
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, at Chap. 9, � VI.B. (Nov. 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 Chap. 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
Decision Without a Hearing
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 United States 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 Corp. 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, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly 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 AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's Motion for Summary Judgment/Decision without a Hearing, and he responded to the Motion. Complainant's Response in Opposition to the Agency's Motion cited no evidence to support his assertions that the Agency discriminated against him and that there were material facts in dispute. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. Therefore, we find that a decision without a hearing was properly issued.
Hostile Work Environment Harassment
To establish a claim of harassment based on sex, national origin, or reprisal, Complainant must show that: (1) he is a member of the statutorily protected class; (2) he 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 his statutorily protected class; (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should 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) (Enforcement Guidance on Harris).
In this case, assuming that the events at issue occurred as Complainant described them, we find that they were not so severe or pervasive as to constituted harassing conduct. We further find that Complainant has not shown that the conduct was based on his statutorily protected class. Complainant acknowledged that he had not engaged in EEO activity prior to this complaint, and there is no evidence that his sex or national origin motivated the actions about which he complains. Accordingly, we find that Complainant has not established that the Agency subjected him to discriminatory harassment.
Constructive Discharge
Constructive discharge occurs when an employee resigns from his or her employment because he or she is being subjected to unlawful employment practices. If the resignation is directly related to the Agency's unlawful employment practices, it is a foreseeable consequence of those practices and constitutes a constructive discharge. The Agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a complainant. To establish that he was constructively discharged from his position, Complainant must show (1) that his resignation resulted from the Agency's actions, (2) that the Agency's actions were discriminatory, and (3) that a reasonable person in his situation would have found the Agency's actions intolerable. See Malpass v. Dep't of Veterans Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, to establish that he was constructively discharged, Complainant must first show that the Agency's actions were discriminatory.
Here, Complainant resigned in lieu of termination. Even assuming that Complainant's version of events is true and that C1, rather than Complainant, caused the February 2009 verbal altercation, we cannot find that the Agency's decision to issue the notice of termination was discriminatory. The record establishes that, after the altercation, Complainant engaged in disruptive behavior by repeatedly telephoning C2 at work. There is no evidence that other employees not of Complainant's protected groups engaged in similar behavior but were not issued termination notices. Further, there is no evidence that the Agency's actions were motivated by discriminatory animus. Accordingly, we find that Complainant has not established that he was constructively discharged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant was not discriminated against as alleged.
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
September 13, 2012
Date
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0120110548
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110548