0120112738
10-07-2011
Priscilla Hammon, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Priscilla Hammon,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112738
Hearing No. 551-2010-00108X
Agency No. ARFTWAIN09MAY011866
DECISION
On March 30, 2011, Complainant filed an appeal from an Administrative
Judge's (AJ) decision 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. When the Agency did not issue a final action following the
AJ’s decision, the AJ’s decision became the Agency’s final order
pursuant to 29 C.F.R. § 1614.109(e). 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Public Affairs Specialist in the Public Affairs Office at the
U.S. Army Installation Management Command at Fort Wainwright, Alaska.
On June 24, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against her in reprisal for prior protected
EEO activity when, on April 10, 2009, she received a notice of formal
written reprimand from her supervisor (S1).
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ assigned to the case
determined sua sponte that the complaint did not warrant a hearing and,
over Complainant’s objections, issued a decision without a hearing on
February 18, 2011.
In his decision, the AJ determined that Complainant began working for the
Agency in or about 2005 in the Military Personnel Division (MPD) at Fort
Wainwright. Complainant filed EEO complaints in January and June 2006,
naming her then-supervisor (S2) as the alleged discriminating official.
The two complaints were resolved in 2006, and Complainant later became
an Army Public Affairs Specialist in 2008.
On the morning of March 31, 2009, Complainant dropped her military
identification card in the snow under her vehicle. She was unable to find
it and needed it to get on the military base. After obtaining a temporary
day pass at the gate, Complainant had to get a new identification card at
her prior work location at MPD where S2 still worked. When Complainant
entered the office there, Complainant told the front desk employee that
she needed an identification card. The employee at the desk asked
Complainant for her husband’s name and rank, which deeply offended
Complainant. Complainant admitted to snapping at the employee and
confirmed that she was rude and sarcastic to the employee. S2 learned of
Complainant’s behavior and reported it to S1. Complainant was later
informed that the employee had a medical condition and the stress of
the incident caused her to have an adverse reaction. On April 10, 2009,
S1 issued Complainant a written reprimand for disrupting the workplace.
The AJ assumed arguendo that Complainant had established a prima
facie case of reprisal and determined that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
Complainant was issued the letter of reprimand based on her behavior
on March 31, 2009. Complainant admitted to snapping at the employee,
being rude and sarcastic, and creating a scene which was overheard by
personnel in other offices.
In attempting to establish that the Agency’s reasons were pretextual,
Complainant did not dispute the facts of the March 31, 2009 incident;
rather, she claims that S2 did not have to report the incident to S1.
Further, Complainant argued that she would not have received a reprimand
had the employee not become ill. The AJ determined that Complainant
failed to establish that the Agency’s reasons for issuing her a
reprimand were pretext for reprisal. As a result, the AJ found that
Complainant had not been retaliated against as alleged. When the Agency
failed to issue a final order within 40 days of receipt of the AJ’s
decision, the AJ’s decision became the Agency’s final action pursuant
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision
without a hearing. Complainant believes that she would not have been
issued the reprimand had the employee not had an illness, but she still
believes that S2 retaliated against her. Further, Complainant argued
that other employees have expressed dissatisfaction with the level of
customer service at S2’s office, but S2 has not requested that they
be reprimanded. Accordingly, Complainant requests that the Commission
reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in her
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claims such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that 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). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, S2
stated that employees reported to her that Complainant was disrespectful
and rude to the front desk employee when she came in for an identification
card. ROI, Fact-Finding Conference (FFC), at 110. S2 affirmed that when
Complainant requested an identification card, the front desk employee,
simply out of habit, asked Complainant what rank her husband was. Id.
Complainant responded rudely and upset the front desk employee. Id.
Complainant had a history of rudeness and disrespectful behavior to other
employees in that office, therefore S2 called S1 and said that in the
future, Complainant would need to have someone escort her or she could
get her identification card at another base. Id.
S1 received statements from employees who witnessed the incident and
turned them over to the Civilian Personnel Advisory Center (CPAC).
Id. at 68. S1 noted that she had previously spoken to Complainant
about her behavior and that there had been at least two other incidents
where Complainant lost her temper. Id. at 62-65. As a result of the
incident and Complainant’s past history, CPAC determined that a letter
of reprimand was warranted and S1 issued it to Complainant. Id. at 68-69.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the evidence
in the light most favorable to Complainant, the Commission finds that
Complainant has not shown that the Agency’s actions were based on
retaliatory animus or that the reasons articulated by the Agency for
its actions were pretext to hide unlawful discrimination or retaliation.
Accordingly, the Commission finds no reason to disturb the AJ's issuance
of a decision without a hearing.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that reprisal occurred.
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 (Nov. 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
October 7, 2011
Date
2
0120112738
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112738