0120053343
02-23-2007
Violet S. Tolbert, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Violet S. Tolbert,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200533431
Hearing No. 130-2004-00187-X
Agency No. MG0J04002
DECISION
JURISDICTION
On April 6, 2005, complainant filed an appeal from the agency's March
7, 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. The appeal is deemed timely and is accepted 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 was a
Custodial Worker at the Maxwell Air Force Base in Alabama. Prior to
filing the instant complaint, complainant had filed three separate
EEO complaints in 2000, 2001 and 2002. In all of these complaints,
complainant alleged age discrimination. In her 2002 complaint, filed
on November 18, 2002, she also alleged reprisal discrimination.
On or about September 19, 2003, the Lodging Manager (White female)
(S1) accused complainant of abusing the agency's sick leave policy.
Specifically, S1 reported that a pattern had developed with regard to
complainant's use of sick leave showing that she requested the leave
the day before or the day after her days off. On October 22, 2003,
complainant asked to take sick leave to go to a doctor's appointment.
The Housing Supervisor (Black female) (S2) told complainant that she
could take sick leave only for half a day. According to complainant,
S2 then gave her a "write-up" for having asked for the leave, and
without authorization, complainant took the leave. On October 29, 2003,
complainant received a Letter of Reprimand for having taken unauthorized
sick leave and for abusing the agency's sick leave policy. According to
complainant, this is another example of how management is "out to get
her."
Prior to the Letter of Reprimand, on September 26, 2003, management gave
complainant a satisfactory performance rating of 16 for fiscal year 2003.2
Complainant maintains that she deserves a rating of 25 because she has
performed above and beyond the call of duty. She believes management
gave her this year-end rating to retaliate against and harass her.
On November 3, 2003, complainant contacted an EEO Counselor and filed
a formal EEO complaint on December 11, 2003, alleging that she was
discriminated against on the basis of race (African-American) and
in reprisal for prior protected EEO activity (arising under the Age
Discrimination in Employment Act of 1967) when:
1. On September 19, 2003, S1 accused her of abusing the agency's sick
leave policy;
2. On or about October 22, 2003, S2 gave her a write-up;
3. On October 24, 2003, management gave her a performance rating of 16;
and
4. On October 29, 2003, S2 issued her a Letter of Reprimand.
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 timely
requested a hearing. Upon the agency's unopposed motion for a decision
without hearing, the AJ assigned to the case issued such a decision on
January 19, 2005. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
FINAL AGENCY ACTION
The AJ found that complainant established a prima facie case of
retaliation; however, he also found that the agency had provided a
legitimate and non-discriminatory reason for acting. Specifically, the AJ
determined that the reprimand complainant received was due to her abuse
of the agency's sick leave policy. The AJ further found that complainant
had failed to rebut the agency's argument with any evidence that the
proffered explanation is merely a pretext to retaliate against her.
With regard to her harassment claim, the AJ again found no evidence to
support a finding because the claim was based on a single incident and
it was not severe enough to constitute harassment under law.
CONTENTIONS ON APPEAL
On appeal, complainant argues that although her first level supervisors
are Black like she, her second level supervisor is White, and it is
this higher level supervisor who has the discriminatory animus and
directs her subordinate managers to carry out discriminatory acts.
Complainant explains that the harassment began on June 3, 2003, the
day after a meeting intended to mediate a prior claim. Since then
management has looking for ways to make her look bad. For instance,
complainant explains that management keeps calling her to meetings to
distract her and keep her from carrying out her duties. In complainant's
words, management has been trying to "find things on her." In this
regard, she argues that the accusation that she was abusing the sick
leave policy is a pretext to discriminate and retaliate against her.
She maintains that management cannot dictate how and when she is to take
her leave. To the agency's argument that she never provided doctor's
notes to justify her sick leave requests, complainant responds that she
has tried to provide S1 with notes, but S1 has refused to take them.
Complainant also raises other arguments for the first time on appeal,
which we decline to address.3
For its part, the agency responds stating that complainant neither
identified genuine issues of material fact in dispute nor argued that
the AJ made improper credibility determinations. As such, maintains the
agency, the AJ's decision, and therefore its final order, must stand.
Nevertheless, the agency argues that the alleged incidents cannot
constitute harassment because they were not sufficiently severe or
pervasive so as to alter the terms or conditions of complainant's
employment. According to the agency, management articulated legitimate
non-discriminatory reasons for its actions which complainant's could
not disprove as being discriminatory.
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 EEOC Management Directive 110, Ch. 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 Ch. 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
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.
See 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. See 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. See 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.
See 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.
See 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. Dep't 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.
Having reviewed the record and the AJ's decision, we agree that there
were no material facts in dispute and that the matter was ripe for a
decision without a hearing. We further find that the AJ did not make
any impermissible credibility determinations or weigh the evidence to
arrive at his conclusions. Rather than finding facts, we agree with
the AJ that the record was adequately developed for summary disposition.
Turning now to the merits of the case, we note that complainant may
establish a claim of race based harassment by showing that: (1) she is
a member of the statutorily protected class; (2) she 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 the
statutorily protected class; and (4) the harassment affected a term or
condition of employment or had the purpose or effect of unreasonably
interfering with the work environment or creating an intimidating,
hostile, or offensive work environment. See 29 C.F.R. � 1604.11; Humphrey
v. United States Postal Serv., EEOC Appeal No. 01965238 (Oct. 16,
1998). Similarly, to establish a claim of retaliatory harassment,
complainant must additionally show that she engaged in prior EEO activity,
and the harassment complained of was because of her prior EEO activity.
See Holton v. United States Postal Serv., EEOC Appeal No. 01991307
(Nov. 7, 2002); McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810
(Aug. 5, 1999).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's circumstances. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). Moreover, the incidents must have been "sufficiently
severe and pervasive to alter the conditions of complainant's employment
and create an abusive working environment." Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Servs., Inc., 23 U.S. 75 (1998). To determine this, the trier of
fact must consider all of the circumstances, including: the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance. See Harris,
We are not persuaded that complainant met the elements of her claim
and agree with the AJ's findings. There is no doubt that complainant
is a member of a statutorily protected class and that she engaged in
prior protected EEO activity. Similarly, we do not question that she
was subject to unwelcome conduct in the form of being accused of abusing
the sick leave policy, receiving a lower than desired performance rating,
and a Letter of Reprimand.4 However, we find that she failed to show that
the unwelcome conduct was due to the fact that she is Black or that she
participated in prior EEO activity.
In fact, the record shows that management had a legitimate basis for
all its actions. Complainant's sick leave requests reveal a pattern
of requesting leave as an extension of an off day. Within an eight
month period, she called in sick eleven times either the day before
or the day after an off day. It is true that employees are entitled
to take sick leave when necessary, but we find it reasonable that a
supervisor would question the suspicious pattern that evolved here.
It is part of a supervisor's duty to ensure that subordinates do not
abuse or violate agency policy. We further find that management issued
the Letter of Reprimand in accordance with agency policy, and upon the
advice of the Human Resources department. Complainant admittedly took
sick leave without any prior authorization; we find such an act to be
a legitimate basis for discipline. As for the low performance rating,
we find it does not help her prove harassment as the alleged acts lack
a connection with her race and/or her protected activity. The evidence
shows that complainant had been hostile to management about the leave
abuse accusation, and the satisfactory rating of 16 reflects this poor
attitude and conduct. Lastly, we note that in light of the fact that we
find the agency's acts to be legitimate; we further find that a reasonable
person in complainant's shoes would not view management's conduct as
having created a hostile work environment. Although the agency's acts
were disagreeable to complainant, they are not sufficiently severe or
pervasive to meet the legal standard of harassment.
CONCLUSION
Accordingly, having reviewed the record and considered complainant's
arguments on appeal, we find no error in the AJ's issuance of a
decision without a hearing. Complainant has failed to prove her claims.
Therefore, we affirm the agency's final order.
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
February 23, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 We note that in her 2002 complaint, complainant alleged that she
had discriminatorily been given a performance rating of 21 for fiscal
year 2002. As a result of a negotiated settlement, the rating was
changed from a 21 to a 22 on June 27, 2003.
3 As a general rule, the Commission will not consider new evidence or
new claims on appeal unless there is an affirmative showing that the
evidence was not reasonably available prior to the investigation or
during the hearing process. See EEO Management Directive 110, Ch. 9 �
VI.A.3 (1999); see also Federal Sector Equal Employment Opportunity, 64
Fed. Reg. 37,654 (July 12, 1999) ("[N]o new evidence will be considered
on appeal unless the evidence was not reasonably available during the
hearing process"). Although the Commission may supplement the record
pursuant to 29 C.F.R. � 1614.405(b), we have chosen to exercise this
right "only in rare instances to avoid a miscarriage of justice," such
as when the record is so incomplete as to require remand to the agency
in order to complete the investigation. EEO Management Directive 110,
Ch. 9 � V.C (1999). We find no such need here.
4 We, like the AJ, note that there is no evidence in complainant's
personnel record showing that she was "written up" as alleged.
Complainant does not dispute this fact on appeal. As such, we decline
to address Claim 2.
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01A53343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120053343
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