0120122960
12-20-2012
Genie S. Uli, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Genie S. Uli,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122960
Hearing No. 451-2012-00005X
Agency No. 9P0J11010
DECISION
Complainant filed an appeal from the decision of an EEOC Administrative Judge 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. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's subsequently issued July 16, 2012 final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's Health Professional Flight 372nd Recruiting Group facility in Hill Air Force Base, Utah.
On March 7, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment because of her sex (female), religion (Russian Orthodox), age (65), and reprisal for prior protected EEO activity when, on December 9, 2010, the Master Sergeant (former supervisor) caused Complainant to be issued a notice of proposed removal, and, on unspecified dates, management did not allow Complainant to speak to others in the office and did not allow her to perform her job.
The only issue accepted by the Agency was the allegation that the Agency discriminated against Complainant when she was issued a notice of removal. The record in this case does not show that Complainant objected to the Agency's refusal to accept her other claims.
The pertinent record shows that several months prior to Complainant's being served the proposed notice, Complainant filed a complaint with the Office of Special Counsel. On his last day, Complainant's former supervisor directed that the December 9, 2010 Proposal to Remove be issued to Complainant. The proposal was supported by documentation. The Agency subsequently rescinded the Proposal to Remove on December 14, 2010. Complainant was not removed. In addition, the record before us does not reflect any adverse action taken against Complainant subsequent to the filing of her complaint on March 7, 2011.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for summary judgment.
On January 30, 2012, the AJ ordered Complainant to respond to the Agency's motion. On March 7, 2012, Complainant responded in an email, stating that "the Agency had not worked in good faith in trying to [alleviate] the initial problem that [she] had been put through." Complainant countered that management was fully aware of her EEO activity and she questioned the validity of the Agency's supporting documentation. Complainant stated that the Agency was trying to avoid its management responsibilities. In her affidavit, she disagreed that the issuance of the proposal to remove was warranted.
Over Complainant's objections, the AJ assigned to the case granted the Agency's January 27, 2012 motion for a decision without a hearing.
The AJ found that the record was adequately developed and that there was no genuine dispute of material fact with regard to one issue that was presented on appeal. The AJ reasoned that Complainant failed to demonstrate with relevant and admissible evidence any genuinely disputed material fact in the case or credibility issue that would have precluded her from rendering summary judgment. The AJ concluded that Complainant failed to otherwise show that she was entitled to judgment as a matter of law.
The AJ next concluded that Complainant failed to offer evidence that the Agency's stated reasons for its actions 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 him to discrimination as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, 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). See also EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Mannon v.United States Postal Service (Western Area), EEOC Appeal No. 0720070074 (April 4, 2012), citing EEOC Management Directive 110. Complainant did not provide a brief in support of her appeal. The record shows that the only issue that the Agency accepted pertained to the proposal to remove, dated December 9, 2010. The record does not show that Complainant notified the Agency that she disagreed with its statement of the accepted issues. In addition, because Complainant does not address the dismissal of some of her allegations, we decline to address the apparent dismissal of her allegations in this decision.
Next, we must 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). 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). In this case, the AJ found that the issue was adequate.
Section 717 of Title VII of the Civil Rights Act, 42 U.S.C. 2000e-16 and the Age Discrimination in Employment Act at Section 633(a) are laws that require that federal agencies to make all personnel actions free of discrimination. This includes acts of reprisal and harassment.
To ultimately prevail in a disparate treatment claim, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of race discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Similarly, Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. See Watkins v. United States Postal Service, EEOC Appeal No. 0120092749 (June 29, 2012). Specifically, in a reprisal claim, 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). Generally, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983).
Finally, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vincent, 477 U.S. 57, 67 (1986), that harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all 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." Harris, 510 U.S. at 23. In this case, the record reflects a proposed notice that was rescinded four days later.
With regard to summary judgment, the standard is whether there is a genuine dispute of material fact that would warrant a hearing, looking at the facts in the light most favorable to the non-moving party. In this case, there is no evidence that Complainant was subjected to an adverse action. We note that the Agency placed Complainant under a different supervisor and the record does not show any evidence of negative treatment after the date of the filing of this complaint.
To ultimately prevail, Complainant must show that there is a genuine dispute of material fact that would show that the Agency's explanation for issuing the notice is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Although Complainant believes the proposal was unwarranted, she was not removed. Complainant has not offered evidence to challenge the Agency's explanation that it acted based on management's perception of her work performance. Consequently, we find that Complainant did not meet her burden.
Even assuming a poor working atmosphere existed as described by Complainant, we agree with the AJ that there are no material facts in dispute. The proposal to remove was based on the supervisor's belief that Complainant was resistant to his directions and failed to perform her assigned responsibilities. In this case, there is no evidence that management took any adverse actions for unlawful reasons.
For these reasons, we discern no basis to disturb the AJ's decision, and 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 tends 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
December 20, 2012
__________________
Date
1 We note that Complainant references incidents that were the subject of a prior EEO complaint that was dismissed. See Genie S. Sumenkow v. Department of the Army, EEOC Request No. 0520120201 (April 12, 2012).
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0120122960
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122960