0120120596
10-09-2014
Complainant v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
Complainant
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 0120120596
Hearing No. 420-2008-00546X
Agency No. RD-2006-02040
DECISION
Complainant timely filed an appeal from the Agency's 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
� 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the AJ properly found that Complainant failed to establish that she was constructively discharged from her position, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Rural Development Manager, GS-12, at the Agency's Area Office, in Wytheville, Virginia. Report of Investigation (ROI), Ex. 6, at 1. From October 29 through November 4, 2005, a State Internal Review (SIR) was done on the Agency's Wytheville Office. Id. at 7. On November 28, 2005, a letter was drafted by the Acting State Director (ASD) congratulating Complainant and her employees for the good administration of the Agency's programs because the SIR had been positive. Id. at 6-8. The SIR noted that the Wytheville office had "good business practices in a positive and productive fashion in keeping within the respective agency objectives." Id. at 8. Notwithstanding the apparently positive SIR, on November 29, 2005, the ASD sent a letter to Complainant's Supervisory Area Director. The letter noted that the findings from the SIR were "very troubling" and that a course of action needed to be taken. Id. at 11. The letter directed Complainant's Supervisory Area Director to underwrite and approve all Section 502 direct loans, which originated from the Wytheville office. Id. Complainant felt that the ASD's letter and actions revoked her loan underwriting authority, critical to her ability to perform the duties of her position.
Subsequently, in early February 2006, Complainant transferred to the Agency's Rural Development Lebanon Area Office to the Position of Loan Specialist, GS-12. ROI, Ex. 6, at 2. Thereafter, via letter dated March 8, 2006, Complainant advised the ASD that she intended to retire on May 1, 2006. ROI, Ex. 20, at 1-3. In the lengthy letter, Complainant wrote that she had no choice but to retire for her physical and mental well-being. Id. Complainant wrote that a problem employee was under her supervision, affecting her condition. Id. Complainant also noted that the employee filed a grievance against her, accusing her of discrimination for selecting another employee for a position. Id. Complainant complained that she was purposefully excluded from team-building activities to make other employees feel more comfortable. Id. Complainant further wrote that the Wytheville SIR could have been better and that someone had spread news that it was the worst report they had ever seen. Id. Complainant indicated that all these matters have created a hostile work environment for her, leaving her no choice but to end her career. Id.
On March 28, 2006, Complainant advised the Agency that she had reconsidered and no longer planned to retire. Id. at 4. Complainant thereafter requested leave under the Family and Medical Leave Act from March 29 through April 29, 2006, for mental exhaustion and depression. ROI, Ex. 13, at 4. Complainant's doctor subsequently advised Complainant not to return to work until August 18, 2007. Id. However, Complainant submitted documentation to retire from the Agency effective September 2, 2006.
Meanwhile, on March 28, 2006, Complainant contacted an EEO Counselor and subsequently filed an EEO complaint on July 18, 2006, alleging that the Agency discriminated against her on the bases of sex (female) and age (58) when she was forced to retire from her position of GS-12 Loan Specialist.
At the conclusion of the investigation, the Agency provided Complainant 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. The AJ initially assigned to the case dismissed it as a mixed-case complaint. Thereafter, on May 28, 2008, the Merit System Protection Board (MSPB) found that Complainant's retirement was voluntary, and therefore denied jurisdiction over the matter. In EEOC Petition No. 0320080088 (Aug. 21, 2008), we remanded the case to the Agency to process it as non-mixed matter pursuant to 29 C.F.R. � 1614.109. On remand, Complainant once again requested a hearing before an EEOC AJ. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on September 30, 2011, in the Agency's favor. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In particular, after considering the Agency's Motion, Complainant's response, and the Agency's reply brief together with the ROI, the AJ found that a decision without a hearing in the Agency's favor was appropriate. The AJ pointed out that Complainant did not submit the hearing transcript from No. 430-2007-00090X1 in timely manner; it was sent separately from her response. The AJ noted that even if Complainant timely submitted a transcript from Hearing No. 430-2007-00090X, records from another administrative hearing involving a different complainant are not appropriate for consideration.
With regard to Complainant's claim of constructive discharge, the AJ noted that Complainant voluntarily changed positions from a GS-12 Rural Development Manager to that of a GS-12 Loan Specialist in February 2006. The AJ noted that Complainant did not claim that her change in position was coerced or discriminatory, and as a Loan Specialist she received the same pay grade. The AJ noted that from February 2006 until her retirement on September 2, 2006, Complainant's position was that of a Loan Specialist. The AJ noted that Complainant was on leave from early April 2006 until her September 2, 2006, retirement, and thus only worked as a Loan Specialist for a short period of time. The AJ indicated that after Complainant submitted her March 6, 2006, letter stating that she planned to retire on May 1, 2006, she e-mailed to cancel her retirement request. The AJ noted that it was not until September 2, 2006, that Complainant actually retired from her position as a Loan Specialist. The AJ noted that Complainant's cancellation of her own planned retirement for May 1, 2006, shows that she did not find her situation intolerable. The AJ indicated that before Complainant submitted her July 25, 2006, letter stating that she was going to retire in September 2006, the ASD's temporary term had expired. The AJ noted that the appointment of a new State Director had been announced effective April 3, 2006. The AJ indicated that even though the alleged RMO, the ASD, was no longer assigned to his position, Complainant found it was impossible to return to work. The AJ found no evidence to show that from May 1, 2006, to September 2, 2006, Complainant was subjected to adverse actions and treatment that a reasonable person would find to be intolerable.
The AJ further noted that Complainant claimed that the ASD removed her Supervisory Area Director from her position on March 24, 2006, to make her work environment hostile. The AJ pointed out, however, that unlike her Supervisory Area Director, Complainant was never involuntarily removed or transferred to a new location. The AJ found no evidence the ASD pressured Complainant to retire, and indicated that Complainant acknowledged that the ASD did not speak to her about retirement. The AJ pointed out that all examples of alleged intolerable work conditions cited by Complainant occurred when she was a Rural Development manager, but this matter conversely pertains to Complainant's constructive discharge claim as a Loan Specialist. The AJ moreover indicated that the requirement set by the ASD for Complainant's Supervisory Director to review all Section 502 loans was uniformly placed on all employees. The AJ stated that Complainant was never reprimanded, suspended, or removed, and was also granted leave when she requested it. The AJ therefore found that Complainant failed to establish that her retirement resulted from intolerable working conditions, and thus she was not constructively discharged from her Loan Specialist position.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserts that her case is identical to her Supervisory Area Director's case, Appeal No. 0720080061, wherein the Commission found that the ASD had subjected the supervisor to discrimination based on age. Complainant maintains that the ASD intentionally went after older employees in an effort to make them retire. Complainant indicates that the Commission found that the ASD used a retirement-eligible list in an attempt to force her Supervisory Area Director to retire. Complainant asserts that she was on the same list and also was targeted for removal after she declined to voluntarily retire. Complainant states that files were hand-picked by employees during the SIR in an effort to make her and her Supervisory Area Director look bad. Complainant further asserts that due to false reports of problems at the Agency's Wytheville office, the ASD launched an investigation against her Supervisory Area Director and her. Complainant additionally states that while she was at the Wytheville office, the ASD removed her loan-making authority without any reason, which affected her job. Complainant moreover maintains that the ASD forced her out of work initially on sick leave and eventually into retirement by conducting an unfair review of the Wytheville Office. Complainant states that the ASD solicited complaints from other employees and sent a specialist to the Wytheville office to find grounds to discipline her and her Supervisory Area Director. Complainant indicates that both she and her Supervisory Area Director suffered nervous breakdowns from the various false allegations levied against them. Complainant states that she was unable to recover from her deep depression due the ASD's actions, and had no choice but to retire effective September 2006.2
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) (slating that a "decision on an appeal from an Agency's final action shall be based on a de novo review."); see also EEO Management Directive for 29 C.F.R. Pan 1614 (EEO MD-110), Chap. 9, � VLB. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint 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 Chap. 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
AJ's issuance of a Decision without a Hearing
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. 29 C.F.R. � 1614.109(g). This regulation is partemed 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 me 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. Dep't of Def, 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 me 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).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond, she was given a comprehensive statement of undisputed facts, and had the opportunity to engage in discovery. For the reasons discussed below, we find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Accordingly, we find that the AJ properly granted the Agency's Motion for a Decision without a Hearing.
Constructive Discharge
A discriminatory constructive discharge occurs when an employer, motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in Complainant's position would feel compelled to resign. In other words, an employee is essentially forced to resign under circumstances where the resignation is tantamount to the employer's termination or discharge of an employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997).The Commission has adopted a three-pronged test for establishing a constructive discharge. Complainant must show that: (1) a reasonable person in her position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from the intolerable working conditions. Greer v. U.S. Postal Serv., EEOC Appeal Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Dep't of Defense, EEOC Request No. 05900630 (July 20, 1990)).
In the instant case, while the ASD may have created an unpleasant work environment for Complainant while she worked at the Wytheville office, there is no dispute that Complainant transferred to Agency's Rural Development Lebanon Area Office of her own accord to work as a Loan Specialist. ROI, Ex. 6, at 2. We note that most, if not all of Complainant's allegations, pertain to her time as a Rural Development Manager at the Wytheville Office. Complainant does not allege that she was subjected to a hostile work environment, much less an intolerable one while she worked the Loan Specialist position. We also note that even though the ASD's temporary term expired effective April 3, 2006, and he was no longer working in his position, Complainant still felt the need to submit her July 25, 2006, letter stating that she was going to retire in September 2006. ROI, Ex. 18, at 9, Ex. 20, at 5.
Complaint also believes that her case is similar, if not identical, to the outcome in Appeal No. 0720080061, wherein the Commission found that the ASD's actions against her Supervisory Area Director amounted to age discrimination. However, in Appeal No. 0720080061, the Commission noted that the ASD removed the Wytheville office from the Supervisory Area Director's supervision and purposefully reassigned her to the Lynchburg office, 150 miles from her home. Conversely, in the instant case, as noted above, there is no dispute that Complainant left the Wytheville office of her own accord, and there is no evidence that Complainant was subjected to intolerable or even hostile treatment by the ASD after leaving that office. Although the Commission found that the ASD engaged in age discrimination against the Supervisory Area Director during the SIR at the Wytheville office, there is no dispute that Complainant is claiming that she was forced to retire from the Lebanon Area Office, not the Wytheville office. Lastly, we note that in her March 8, 2006, advising the ASD of her intention to retire, Complainant cited incidents for which /hat the ASD was not responsible, including the fact that she had been assigned to work with a problem employee who had filed a grievance against her alleging discrimination. ROI, Ex. 20, at 1-3.
Therefore, based on the above, we find that Complainant has failed to show that the Agency engaged in discrimination that became so intolerable that she had no choice but to resign from her Position of Loan Specialist at the Agency's Rural Development Lebanon Area Office. See EEOC v. Univ. of Chicago Hosp., 276 F.3d 326, 331-32 (7th Cir. 2002) (finding that when an employee resigns because of discriminatory harassment, the employee must demonstrate a discriminatory work environment even more egregious than the high standard for hostile work environment). As such, we conclude that Complainant did not establish that her resignation constituted a constructive discharge.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
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
October 9, 2014
Date
1 On July 12, 2006, Complainant's Supervisory Area Director filed an EEO complaint, also naming the ASD as the responsible management official (RMO). After an investigation, a hearing was held before an EEOC AJ, Hearing No. 430-2007-00090X. In Hammer v. Dep't of Agriculture, EEOC Appeal No. 0720080061 (Jan. 6, 2009), we found substantial evidence in the record to support the AJ's finding that the ASD was motivated by discriminatory animus based on the Supervisory Area Director's age. Therein, we noted that the ASD utilized a retirement-eligible list to make reductions in the Agency's Virginia offices in an attempt to force the supervisor to retire; conducted an unfair review of the supervisor's office by hand-picking files to be scrutinized during the SIR; launched an unjustified and bizarre investigation against the supervisor; temporarily removed her from supervision of the Wytheville office; and allowed a male comparator privileges in the supervisor's position that she was not allowed. We also noted that once the ASD reassigned the supervisor to Lynchburg, she was still subjected to a hostile work environment.
2 Complainant further claims that the AJ erroneously determined sua sponte that she did not timely submit the compact disc for the Hearing transcript of her Supervisory Area Director's case, Hearing No. 430-2007-00090X. Complainant asserts that she moved the AJ to accept the record for her Supervisory Area Director's case, which was already before the EEOC.
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0120120596
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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