0120113603
01-25-2013
Rosemarie Erwin-Davis, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Rosemarie Erwin-Davis,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120113603
Hearing No. 530-2008-00273X
Agency No. NPS-06-0930
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 2, 2011 final order concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Custodial Worker Leader, WL-3566-03, at the Agency's Independence National Historical Park, Division of Maintenance in Philadelphia, Pennsylvania.
On December 19, 2006, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when:
1. a supervisor engaged in unwelcome sexual conduct that interfered with her job performance;
2. on or about August 2, 2006, she was issued a Letter of Reprimand for inappropriate and unprofessional conduct; and
3. on or about August 31, 2006, she was interrogated for not being at her duty station, even though she had approval from her immediate supervisor to handle a family emergency.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 23, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of race, sex and reprisal discrimination. The AJ further found that assuming arguendo Complainant established a prima facie case of race, sex and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, the AJ determined that the undisputed record reflected that Complainant and her immediate supervisor are close friends. For instance, the immediate supervisor walked Complainant down the aisle at her wedding. The AJ stated that during the relevant period, a named employee spread rumors that Complainant and the immediate supervisor were having an affair.
The AJ noted that Complainant's second line supervisor stated the first time he asked the immediate supervisor about his relationship with Complainant was after hearing about them spending a considerable amount of time together on the park grounds. The second line supervisor further stated that he approached the immediate supervisor again after finding out that the supervisor and Complainant "were spending a lot of time walking around the park together when [Complainant] should have been working. And also they were spending a lot of time in New Hall, you know, one of the buildings we have...I say, 'it's gonna have to stop because it's causing unrest among the employees to see her walking around with him when she should be working."
The second line supervisor stated that the third time he discussed this matter with the immediate supervisor was after a named employee informed the second line supervisor that he had observed the immediate supervisor and Complainant shopping together during their work hours. The second line supervisor stated that the immediate supervisor got angry with him and he reminded the immediate supervisor that he and Complainant cannot continue spending time together when they should be working and "that was the end of that. And I have never spoken with him again about that; about him and [Complainant]."
Regarding claim 2, the second line supervisor stated that on August 2, 2006, he issued Complainant a letter of reprimand for inappropriate and unprofessional conduct. The second line supervisor stated that on February 24, 2006, Complainant's husband drove her to work. Complainant had been crying the preceding night, and she had told her husband that she was upset because the second line supervisor would not give her a promotion and because he was spreading rumors about her having an affair with the supervisor. The second line supervisor stated that Complainant's husband wanted to talk with him, and the immediate supervisor opened the door for Complainant's husband to enter the building.
The second line supervisor stated that the immediate supervisor told him that there was someone outside that wanted to see him and he told the immediate supervisor that he did not want to see someone he did not know. Specifically, the second line supervisor stated that the immediate supervisor then stated "if you don't come, out, I'm gonna bring him in.' I say, 'well, don't bring anybody in here that I don't know. Cause there's nobody - - I don't have an appointment with anybody or anything of that nature.' I go back into my office, a few minutes later there's a knock on the door. I open the door, [Complainant] is standing there with this gentleman [Complainant's husband] that I don't know who he is. So, . . . I open up a door, she's leaning, she's leaning on the front of my door with her arms crossed and this gentleman started jumping in. He said, 'you got a problem with my wife?' And I say 'what?' He said, 'you got a problem with my wife?' And I say, 'first of all, who is your wife?' Who are you?' He say, '[Complainant].' I say, 'no, I don't have a problem with your wife, why? 'He say, 'you got a problem with her and [Complainant's immediate supervisor] being friends?'" The second line supervisor stated that he assured Complainant's husband that he did not have a problem with his wife and instructed him to leave because he was not an employee.
The second line supervisor stated that based on the incident, he felt that the immediate supervisor "was out of order and [Complainant] was out of order. . . . I took that as a threat; [Complainant's husband] coming in here. And then his tone of voice, and what was happened, she was given a letter of reprimand." The second line supervisor stated that the supervisor was also disciplined for disobeying his instructions and allowing Complainant's husband to enter his office. The record reflects that the immediate supervisor was given a one-day suspension.
Regarding claim 3, the Chief of Maintenance (Chief) stated that on August 29, 2006, he observed a named employee sitting and smoking a cigarette. The Chief stated that on the same day, he observed Complainant and another employee entering the basement of the Pemberton House, that does not get many visitors. The Chief stated that on or about August 30, 2006, the Chief observed Complainant in the stairwell of the Pemberton House talking on her cell phone...then I saw [named employee] again, sitting around reading a newspaper. So, this is consistent, like you know, three or four days in a row here that I have identified with [supervisor]. And then on the day that [Complainant] had said that she was, again, almost in front of the Pemberton House, again on [August 31, 2006], at about 11 o'clock she was meeting with two men. They were outside of the corner of, it would be Chestnut Street and Fourth."
The Chief stated that he then contacted the supervisor and asked him and Complainant to come in his office and "discuss that on those three days I see [Complainant] standing around the Pemberton House when they know that we're short on personnel." The Chief stated that the next day, August 31, 2006, he met with Complainant and the supervisor. At that time, the Chief still did not know that the second line supervisor had given Complainant permission to leave her duty station the previous day. The Chief expressed his concerns that he frequently observed staff members standing around, not doing their job. The record reflects that both Complainant and the supervisor felt that it was an interrogation. However, once the Chief learned that Complainant had received permission from the second line supervisor to leave her duty station, he took no further action regarding this issue. Moreover, the Chief stated "after a brief discussion of the fact of our shortage of personnel for custodial staff, I indicated I would need to make best use of the present staff. And that was it."
The second line supervisor stated that on August 30, 2006, Complainant contacted him because the supervisor was off work that day, and requested to meet her son or her cousin or bother or somebody for a few minutes. She needed to get something from them...I say, 'okay, [Complainant] I said, 'no problem. Go ahead on, I give you permission. So, you know, after a period of time, she called me back and told me and that, you know, she was back at her duty station." The second line supervisor stated at that time the Chief did not know, when he observed Complainant talking with the two men who were not Agency employees, that he had granted her permission to do so.
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, 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.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, sex or retaliation. We further find that the incidents of harassment identified by Complainant were not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final order implementing the AJ's decision finding no discrimination 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
January 25, 2013
__________________
Date
2
0120113603
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113603
7
0120113603