0120060162
03-26-2008
Ranae L. Anderson, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Ranae L. Anderson,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200601621
Hearing No. 260-2005-00088X
Agency No. 040407
DECISION
Complainant filed an appeal from the agency's October 4, 2005 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. 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 an Administrative Support Assistant at the agency's Animal and Plant
Health Inspection Agency facility in Des Moines, Iowa. On April 26, 2004,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of sex (female) and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when she
was subjected to harassment. The claims of the complaint were defined
as the following:
(1) On unspecified dates, complainant did not receive an award for
her work on the Exotic Newcastle Disease (END) Outbreak program;
(2) Since November 2003, complainant's supervisor sent complainant
highly critical comments, emails and notes concerning her job performance;
(3) On December 15, 2003, complainant's supervisor accused her of
being the source of a rumor that he and a former employee were having
an affair;
(4) On December 29, 2003, complainant was not selected for the
position of Administrative Officer;
(5) Since December 29, 2003, complainant was denied access to her
computer, was assigned no duties, and received no mail;
(6) Complainant's supervisor did not conduct her 2003 performance
evaluation with her;
(7) On January 26, 2004, complainant's supervisor gave her a letter
of caution; and
(8) Complainant's supervisor interfered or prevented her from
participation in the leave recipient program.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. Over complainant's objection, the AJ assigned to the case
granted the agency's Motion for Summary Judgment, dated May 31, 2005,
and issued a decision without a hearing on August 18, 2005. The AJ found
that complainant failed to show that she was subjected to discrimination.
In her decision, the AJ denied complainant's request to amend her
complaint to include claims that she was repeatedly denied training.
The AJ found that complainant did not request the amendment within the
30-day time frame set forth in the AJ's Acknowledgment and Order of
February 2, 2005.
With respect to complainant's reprisal claims, the AJ found that
complainant did not present a prima facie case of reprisal discrimination
with respect to her complaint in that her prior EEO activity occurred
more than seven months after her prior complaint was dismissed and more
than a year and a half from the time it was filed. The AJ found that
complainant presented no evidence that could provide the necessary nexus
between her prior EEO activity and the incidents she described in the
instant complaint. With respect to complainant's non-selection claim,
(claim (4) herein), the AJ found that nothing in the record showed that
complainant's qualifications were plainly superior to those possessed by
the selectee for the position of Administrative Officer. With respect
to complainant's overall claim of harassment, the AJ found that taking
into consideration the length of time over which the incidents occurred,
and the frequency of the events, the events were not so severe or
pervasive as to create a hostile work environment. The AJ also found
that the evidence showed that the alleged incidents of harassment were
not motivated by discrimination.
Accordingly, the AJ found that no material facts remained in dispute and,
drawing every inference in complainant's favor, found that complainant
did not show that she was subjected to sex or reprisal discrimination.
The agency subsequently issued a final order on October 4, 2005, adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
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 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. Department of Defense, 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. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond 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).
To prevail in a disparate treatment claim 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). Complainant
must initially establish 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 Construction
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 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center 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. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find no material facts remain in dispute and that
the AJ properly issued her decision without a hearing. As a preliminary
matter, we find the AJ properly denied complainant's request to amend
her complaint to include the repeated denial of complainant's requests
for training. We find that complainant does not deny that she received
the AJ's acknowledgment order and also note that complainant previously
amended her complaint during the agency's processing of her complaint.
We therefore find that complainant was aware of the need to request,
in a timely manner, any amendment she wished to make to her original
complaint and that the AJ properly held complainant to the deadline set
forth in her initial scheduling order.
Similarly, although complainant argues that the agency misdefined the
"dates" for the denial of awards claim (claim 1), we find that complainant
had ample opportunity to supply the agency, and subsequently, the AJ,
with the specific dates (rather than the "unspecified dates") on which
complainant believed she was denied awards during her tenure with
the agency. We find nothing in the record indicates that complainant
notified the AJ of the error in the identification of her claim with
respect to awards.
The Commission finds that complainant has not linked any of the claims
or alleged harassment to her protected status of sex (female) or to her
prior EEO activity.
With respect to the agency's selection for the position of Administrative
Officer (claim 4), we concur with the AJ's finding that while complainant
was qualified for the position, complainant's qualifications were not
superior to those of the selectee such that either complainant's sex or
reprisal for complainant's prior protected activity more likely motivated
any part of the agency's selection decision.
We further concur with the AJ that, taking into consideration
complainant's overall harassment claim, that the incidents described
therein are not so severe or pervasive as to have created a hostile work
environment. We note that complainant's supervisor provided legitimate,
non-discriminatory reasons for the agency's actions. We observe that
complainant's supervisor issued discipline to complainant for improper
use of government resources (including another employee's time)
and that several incidents complainant describes as discriminatory,
accompanied complainant's abrupt departure from the workplace, following
her non-selection in December 2003. The lack of work provided complainant
and the delay in delivery of her performance appraisal appears to have
stemmed from complainant's prolonged absences from work after December
2003.
After a careful review of the record before the Commission, and the
arguments on appeal, we find no reason to disturb the AJ's decision
to grant to the agency's Motion for Summary Judgment. We therefore
AFFIRM the agency's final decision, finding no discrimination.
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
March 26, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
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0120060162
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120060162