0120122806
12-07-2012
Idamis Perez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Idamis Perez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120122806
Hearing No. 510-2011-00214X
Agency No. APHIS 2010-00379
DECISION
On June 21, 2012, Complainant filed an appeal following the receipt of an EEOC Administrative Judge's decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Plant Protection Technician in a Limited Temporary Appointment at the Agency's Animal and Plant Health Inspection Service facility in Ponce, Puerto Rico.
On June 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases1 of sex (female), national origin (Hispanic), disability (depression) and age (over 40) when:
1. On February 13, 2010, Complainant's term appointment expired and she was not extended.
2. In July 2009, Complainant's Supervisor (Supervisor, female, Hispanic, no disability, and over 40) contacted her while she was hospitalized to suggest that she resign from her position and subsequently failed to advise her of the employee assistance program (EAP).
3. On unspecified dates, the Supervisor denied her the opportunity to participate in outreach, public awareness, and special emphasis programs activities; and
4. On unspecified dates, the Supervisor refused to allow her to reschedule a mandatory training session after she left the original session to be with her ill son.
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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on May 11, 2012.
The AJ found that there were no material facts in dispute. As to event (2), the AJ noted that the Supervisor contacted Complainant while she was in the hospital because Complainant had been out of work for three weeks. The Supervisor indicated that Complainant had not provided an update on her status and she informed Complainant that she could not leave the temporary position open indefinitely. The AJ determined that the Supervisor needed to know if Complainant intended to return to her position because she had not provided the Agency with any specific answer. As such, the AJ found the Supervisor's inquiry to be justified. Also alleged in event (2), the AJ determined that Complainant had not shown that she was harmed by the Supervisor's failure to mention EAP to her. As to event (4), the AJ indicated that Complainant had not shown there was another session to which she could have attended. Further, Complainant had met all the mandatory training for her position. Finally, as to Complainant's appointment alleged in event (1), the AJ stated that Complainant was aware that she had an appointment with an expiration date. During the relevant time, eleven other employees had their terms expire and these employees were both within and outside of Complainant's protected classes. In addition, the AJ determined that the Agency provided legitimate, nondiscriminatory reasons for letting her term expire. As such, the AJ concluded that Complainant failed to show that the alleged events constituted unlawful harassment or discrimination.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
ANALYSIS AND FINDINGS
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). 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
It is well-settled that harassment based on an individual's national origin, sex, disability, and age is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct related to his/her membership in those classes; (3) the harassment complained of was based on her national origin, sex, disability and/or age; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that the AJ correctly determined that Complainant failed to establish that the events occurred due to her protected bases or that the events constituted harassment. Further, to the extent Complainant alleged that she was subjected to discrimination, she has not shown that the Agency's reasons for its actions were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's decision finding no harassment or discrimination.
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
December 7, 2012
__________________
Date
1 We note that Complainant also alleged discrimination based on marital status (divorced) and parental status (single mother). We note that these bases are not a covered under our regulations and will not be address in this decision.
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0120122806
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122806