01A42590
07-07-2004
Royale Robinson, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Royale Robinson v. Department of Labor
01A42590
July 7, 2004
.
Royale Robinson,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A42590
Agency No. 02-11-014
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final action.
The record reveals that during the relevant time, complainant was
employed as a Student Intern Trainee (Pension Law Specialist), GS-9,
at the agency's Pension and Welfare Benefits Administration (PWBA).
Complainant sought EEO counseling and subsequently filed a formal
complaint on November 14, 2001, alleging that she was discriminated
against on the bases of race (African-American), religion (Baptist),
color (black), and age (47), when on July 17, 2001, complainant was
terminated as a Student Intern Trainee.
BACKGROUND
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Complainant failed to appear and
participate in mediation and failed to cooperate in the processing of
her EEO complaint by not keeping the agency and the EEOC informed of
her current address. The agency filed a Motion for Summary Judgment,
and complainant failed to respond. The AJ subsequently issued a decision
without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination based on race, religion, color, or age. Specifically,
she failed to show that similarly situated individuals outside of
complainant's protected classes were treated differently. The AJ,
however, recognized that complainant raised various situations which,
when otherwise unexplained, created an inference of discriminatory animus
that motivated her termination, such as her allegations of receiving
assignments with racial connotations and the discriminatory remarks
made in her presence. Nevertheless, the AJ found that only one of the
incidents was ever reported to her supervisor, and an investigation
into the matter found nothing. The AJ concluded that complainant
presented neither documentary evidence of a hostile work environment,
nor the names of any witnesses in connection to the allegedly hostile
environment sufficient to establish a prima facie case of harassment.
Despite the failure to establish a prima facie case, the AJ concluded
that the agency proffered a legitimate, nondiscriminatory reason for
complainant's termination, namely complainant's failure to follow
the agency's policy for requesting leave resulted in three weeks of
unauthorized absences. The AJ found that complainant's failure to
appear at work for an extended time period without notification to her
supervisor was a legitimate reason for her termination. The AJ then
concluded that complainant failed to demonstrate by a preponderance of
the evidence that the proffered reason articulated by the agency was
unworthy of belief or a pretext for discrimination. Therefore, the AJ
concluded that complainant was not discriminated against on the bases of
race, religion, color, or age when the agency terminated her employment.
The agency's final action implemented the AJ's decision.
Complainant raises similar arguments on appeal to those she raised
during the investigation of her complaint. Specifically, she alleges
that she was subjected to a hostile work environment that culminated
in her termination. Complainant does not contest the propriety of the
decision without a hearing, rather, she appeals only the ultimate finding
of no discrimination. The agency stands on the record and requests that
we affirm its final action implementing the AJ's decision. It asserts
that complainant's attempt to rebut the agency's articulated reasons for
her termination does not rise to the level necessary to prove intentional
discrimination.
FINDINGS AND ANALYSIS
Pursuant to 29 C.F.R. � 1614.405(a), the Commission reviews decisions
without a hearing under a de novo standard. The Commission's regulations
allow an AJ to issue a decision without a hearing when he 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, the
issuance of a decision without a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without a hearing only upon a determination that the
record has been adequately developed for summary disposition.
We note that on appeal, complainant does not controvert the propriety of
the decision without a hearing, rather, she appeals only the ultimate
finding of no discrimination. It is clear from the record that
complainant had a full and fair opportunity to supplement the record if
desired. In fact, upon receipt of the investigative file, complainant
submitted comments on the accuracy of the file, as well as pointing out
missing documentation, which was later included in the record. We find
that the record in this case was adequately developed for issuance of
a decision without a hearing.
Complainant disputes the AJ's ultimate finding of no discrimination,
contending that the ultimate decision should have been made in her favor.
After close analysis of the record, the Commission concludes that the
AJ's finding of no discrimination was proper.
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell
Douglas Corporation v. Green. 411 U.S. 792 (1973). For complainant to
prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination on the
bases of race, religion, color, or age, complainant must show: (1) she
belonged to the claimed protected class; (2) she was subjected to an
adverse employment action; and (3) she was treated less favorably than
similarly situated employees who are not members of the protected group.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
While the first two prongs were met, we concur with the AJ's conclusion
that complainant failed to submit any comparative employees who similarly
failed to contact a supervisor for extended absences. Accordingly,
a prima facie case of race, color, religion, sex, national origin,
or age discrimination was not established.
Nevertheless, the agency articulated a legitimate, nondiscriminatory
reason for its actions, in that complainant failed to show up for work
or contact her supervisor each day regarding her absence. Therefore,
the burden shifts to complainant to prove that this reason was a pretext
for a discrimination. In order to support her argument of pretext,
complainant alleges numerous incidents that she claims evidences a hostile
work environment, therefore proving that one or more of her protected
bases was a motivation for her termination. Looking at the facts in
the light most favorable to the complainant, the various acts cited by
complainant allegedly creating a hostile work environment could lead to
an inference of discriminatory animus against complainant. Nevertheless,
only one such incident, the cutting of her office plant, was even reported
to her supervisor, who subsequently conducted an informal investigation.
After investigation, the supervisor found no evidence of wrongdoing.
As to the other incidents, complainant failed to name witnesses or give
documentary evidence of the occurrences which allegedly created the
hostile work environment. Likewise, complainant has failed to prove a
nexus between this allegedly hostile environment and her termination.
The record reflects that complainant met with her supervisor regarding
her sick leave and discussed the procedure for reporting absences prior
to her termination. The supervisor explained to complainant that he
wanted her to call him each day she would be absent. It is undisputed
that complainant failed to do this. Complainant presents no concrete
evidence that any discriminatory animus motivated the supervisor's
termination of complainant's employment.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission affirms the
agency's final action.
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
July 7, 2004
__________________
Date