0120111530
11-14-2012
Ann J. Briscoe, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Ann J. Briscoe,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120111530
Hearing No. 570-2010-00168X
Agency No. DOS-F-055-09
DECISION
Complainant filed an appeal from the Agency's final order dated February 11, 2011, finding no discrimination with regard to her complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In her complaint, dated March 25, 2009, Complainant, a Media Specialist, GS-12, at the Agency's Rapid Response Unit (RRU), Washington D.C., alleged discrimination based on race (African-American), age (over 40), and disability (disk degeneration) when she was subjected to a hostile work environment from 2007, to February 2009.1 Specifically, Complainant indicated that she was subjected to a hostile work environment when:
(1) In December, 2008, her supervisor questioned the timekeeper about her entitlement to Sunday and night differential pay.
(2) An identified IT Specialist supervisor told her that as a result of the timekeeper's inquiry, the supervisor researched her arrival time for a short period of time.
(3) She received her 2008 Performance Appraisal on January 31, 2009, from the supervisor. While she agrees with the "Outstanding" rating, this was her first appraisal in two years and she did not receive an evaluation for 2006 and 2007. The contractor employees received annual appraisals.
(4) The supervisor once asked why she was assigned to the function. The IT Specialist supervisor told her in February 2009, that Complainant's supervisor asked why she was in RRU.
(5) She felt excluded from the unit and not a full participant in the process unless there was a high level Agency visitor (Fall, 2008) or the supervisor wanted to make an important announcement regarding termination of another employee (February, 2009). She was not invited to sit in the daily "circle" with coworkers when discussing what media events were important.
(6) In December 2008, the supervisor said her dessert was stolen and asked her if cameras were needed in the office. She believes the supervisor was accusing her of stealing the dessert.
(7) She was not included in a photo opportunity with the Secretary of State on January 19, 2009. She was not made aware of the opportunity.
(8) Her work product has been ignored. She had produced a collection of cartoons for Agency Officials' review; however, the supervisor asked another member of the staff to duplicate her efforts.
(9) In a 2007 television story on the RRU, she was not recognized in the report as being part of the unit.
Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 29, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final order implemented the AJ's decision.
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. Upon review, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists.
As an initial matter, we note that Complainant argues that when the hearing request was transferred between AJs, some documents were not transferred. Even if that were true, we have examined all the documents in the record and we still find that the issuance of a decision without a hearing is appropriate.
In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. With regard to claim (1), Complainant's supervisor indicated that it was the timekeeper who questioned about Complainant's pay differential and whether she filled in her timesheet correctly since she had already left work. The supervisor stated that she then asked the timekeeper about the rules regarding the pay differential and then approved Complainant's time sheet as she submitted it.
With regard to claim (2), the supervisor indicated that he did not have any concerns about Complainant's arrival time. However, the supervisor stated that since Complainant worked alone until the last three hours of her shift, she, as a manager, was required to check on attendance as she saw fit.
With regard to claim (3), the supervisor indicated that Complainant was the only career employee in her unit and she did not handle Complainant's appraisals in 2006 or 2007 as she just arrived to the unit in late 2007. The record indicates that Complainant received her 2008 appraisal of "Outstanding" rating on January 22, 2009. Complainant does not dispute this. Complainant also identified another supervisor who failed to give her appraisals for 2006 and 2007. However, that identified supervisor indicated that he was not her rating officer in 2006 or 2007.
With regard to claim (4), the supervisor acknowledged that upon her first arrival to the RRU, she did ask about the role of Complainant's position as well as that of every other member of staff in 2008. The supervisor stated that as a new supervisor, she was interested in the history of all positions and the unit in general. According to the supervisor, since Complainant's position was moved from another unit no longer in existence, she merely asked why the transfer was made in order to gain a better understanding of the overall picture of the RRU as a whole.
With regard to claim (5), the supervisor stated that when she first arrived in the unit, she was informed by her director that Complainant was not asked to join the rest of the staff in the office "circle" for group meetings in deference to her physical issues as moving around too much, or changing chairs was thought to cause her too much pain. The supervisor indicated that she merely followed the already established procedure and did not require Complainant to join the staff for group meetings, rather allowed her to remain at her workstation and participate from there. Complainant does not dispute this.
With regard to claim (6), the supervisor indicated that she did not accuse Complainant of taking the dessert. She acknowledged mentioning to place cameras in the unit due to the incident.
With regard to claim (7), the supervisor indicated that she only had three or four hours notice that the Secretary of State would be available for the photo opportunity and at that time, Complainant had already left the office.
With regard to claim (8), the supervisor indicated that she did not ignore Complainant's work as she alleged. The supervisor acknowledged that at the relevant time, she asked an identified employee to search for cartoons to further assist Complainant. Specifically, the supervisor indicated that she decided to do this in an effort to put that employee to better use than simply having him sit idle and she had no intention to preclude Complainant from continuing her search in any way.
With regard to claim (9), the supervisor denied any knowledge about the television story on the RRU.
Upon review, we find that Complainant failed to show that she was treated less favorably than any similarly situated employee under similar circumstances. In this case, assuming (without deciding) that Complainant was an individual with a disability, we note that she has not claimed that she was denied a reasonable accommodation. Furthermore, Complainant has not in any way shown that she was made to work beyond her medical limitations. After a review of the record, we find that Complainant failed to show that the alleged harassment was sufficiently severe or pervasive to affect a term and condition of her employment or that any Agency actions were motivated by discrimination.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.2
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
11/14/12
__________________
Date
1 We note that Complainant also alleged discrimination concerning her January, 2006 reassignment to a position in RRU. On April 10, 2009, the Agency dismissed the claim on the grounds that Complainant's February 25, 2009 EEO Counselor contact was untimely. Since Complainant failed to raise the foregoing dismissal during her hearing, we find that Complainant effectively abandoned the subject claim. Thus, we need not address the claim in this decision.
2 We note that Complainant contends on appeal that the Agency failed to investigate her subsequent retaliation complaint, Agency No. DOS-F-047-11, in conjunction with the instant complaint. There is no evidence that Complainant raised this subsequent claim to be included in a timely manner after the Agency's issuance of the April 10, 2009 acceptance/dismissal letter of the instant complaint. The record indicates that on April 8, 2011, the Agency accepted Agency No. DOS-F-047-11 for investigation which is pending before the Agency at this time.
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0120111530
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013