0120102124
06-08-2012
Diane M. Cooper, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Diane M. Cooper,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120102124
Hearing No. 560-2008-00071X
Agency No. HHS-HIS-026620-07
DECISION
Complainant filed an appeal from the Agency's March 13, 2010 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Claremore Indian Hospital facility in Claremore, Oklahoma. On July 24, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black, Indian), religion (Seventh Day Adventist), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was harassed from September of 2005 through December of 2006.
2. On March 22, 2007, a Physician stated he was going to "shoot [Complainant] at midnight;"
3. On an unknown date, Complainant was told that a co-worker stated "you can tell who is part animal by the way they walk because they worship animals and have sex with animals in church;"
4. On June 7, 2007, the Night Supervisor charged Complainant with being absent without official leave (AWOL) for two hours for failure to follow appropriate leave requesting and approval procedures; and
5. On June 18, 2007, Complainant was terminated from her probationary position as a Licensed Practical Nurse.
By letter dated July 5, 2007, the Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that Complainant was not aggrieved by the actions described in these claims either alone, or as part of an overall claim of harassment together with the other incidents described in her complaint. By letter dated August 3, 2007, the Agency dismissed claim (1) for untimely EEO contact. The Agency found that Complainant brought this claim to the attention of the EEO Investigator in July 2007, during the investigation of her complaint. The Agency found that Complainant had constructive notice of the applicable time limits in which she was required to initiate the EEO process with respect to her claim of harassment. The Agency found the incidents Complainant described as occurring in 2005 and 2006 were unrelated and did not involve the same management officials identified in other incidents described in her complaint. The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2). Claims (4) and (5) were accepted for investigation by the Agency.
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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 10, 2010 motion for a decision without a hearing and issued her Order Entering Judgment and Summary Decision on March 3, 2010.
In her Decision, the AJ found that Complainant had previously been informed of the Agency's leave policy. Specifically, the AJ found no dispute that Complainant had previously received a charge of absent without official leave (AWOL), and that she had been informed that the charge was for failure to request leave from a leave granting authority. The AJ noted the undisputed statements of S1 and S2 that leave must be requested from a supervisor and that on June 7, 2007, Complainant did not request two hours of leave from a supervisor for the purpose of visiting the Agency's clinic. The AJ found no evidence or allegation that a supervisor was not available to authorize Complainant's leave.
The AJ considered Complainant's response that employees commonly take leave without seeking a supervisor's permission; however, the AJ noted that Complainant failed to identify any employee who had failed to request leave from the proper authority who was not also charged with AWOL.
Regarding claim (5), the AJ found that S1 terminated Complainant's employment because S1 found that Complainant failed to follow the Agency's procedures for infant care. Specifically, S1 stated that Complainant did not take a 24-hour blood sugar level reading for one infant and jeopardized the care of another infant when she failed to prepare a warmer for the infant. S1 denied that Complainant's race, religion, or prior EEO activity played any role in S1's decision.
The AJ considered Complainant's statement that S2 had ordered her away from her workstation at the time she was supposed to be attending the critical infant, and that she believed the other infant had sips of formula so that a blood sugar level would not normally be taken. However, the AJ found the undisputed evidence showed that Complainant stipulated to failing to prepare for the critical infant and failing to take the blood sugar level before the Oklahoma Board of Nursing. Accordingly, the AJ found that Complainant's arguments in defense of negligence to be disingenuous.
Accordingly, the AJ found the material facts were not in dispute and that the Agency articulated legitimate, nondiscriminatory reasons for its actions that Complainant failed to show were a pretext for discrimination. 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.
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, 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 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. 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).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Although the initial inquiry of discrimination in a discrimination case usually focuses on whether the complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether the complainant has established a prima facie case to whether s/he has demonstrated by preponderance of the evidence that the agency's reasons for its actions merely were a pretext for discrimination. Id.; see also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
As a preliminary matter, we find that Complainant does not challenge the Agency's procedural dismissals of claims (1) - (3) on the grounds cited. We concur with the Agency's analysis that no common actors or themes unite the incidents of harassment described in Complainant's complaint to support an overall claim of harassment on any basis. We affirm the Agency's dismissal of claims (1) - (3) on the grounds set forth by the Agency.
In the instant case, we concur with the AJ that the material facts are not in dispute and find that the AJ properly issued her decision without a hearing. We find no dispute that Complainant did not request leave from a supervisor, but instead notified a Charge Nurse that she would be visiting the Agency's clinic on June 7, 2007. We find no dispute in the evidence that a charge nurse cannot grant or deny leave and no evidence that it was common practice for employees to use leave after simply notifying the charge nurse so that their assigned station was covered. We further find no dispute that Complainant did not prepare a warmer (an "Ohio unit") for an infant on June 10, 2007. We consider Complainant's statement that she was not told the infant had been delivered as true. The evidence is undisputed that Complainant was aware of the pending high-risk delivery and, nevertheless, did not prepare the Ohio unit in advance of the infant's delivery. We also note that Complainant was a probationary employee at the time of termination. We find no evidence that Complainant's race, religion, or prior EEO activity motivated the Agency's actions and we find that the AJ properly concluded that no discrimination occurred as alleged.
CONCLUSION
We AFFIRM the Agency's Final Decision.
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
June 8, 2012
__________________
Date
2
0120102124
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102124