0120113999
02-09-2012
Jacqueline Mohamed, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jacqueline Mohamed,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113999
Hearing No. 530-2010-00130X
Agency No. 200H-0460-2009101822
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s July 6, 2011 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Medical Support Assistant at the Agency’s Medical
Center in Wilmington, Delaware. On May 27, 2009, Complainant filed a
formal complaint alleging that she was subjected to hostile workplace
discrimination based on race (African-American), sex (female), disability
(Shoulder), and reprisal for prior protected EEO activity under Title
VII and the Rehabilitation Act of 1973 when:
In 2008 and 2009, she was promised but did not receive a bonus; charged
with being Absent Without Leave (AWOL); and reassigned to a Medical
Support Assistant position.
The record reflects that Complainant had served as a Library Technician,
GS-5, at the Agency's Medical Center. Complainant alleged that,
while working in the library in 2008, she was promised that she would
receive a bonus for assisting with the logistical problems connected
with re-locating the library to a different floor of the Medical Center.
Along with interns and other staff, she assisted in packing the books
and moving the boxes. Complainant indicated that the Medical Center’s
Administrative Assistant to the Chief of Staff said that she would
request such a monetary award for Complainant. Finally, on January 29,
2009, Complainant was reassigned to her current position, Medical Support
Assistant, GS-5, at the Medical Center's Health Administration Service.
At the conclusion of the investigation, Complainant was provided 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 within the time frame provided in 29 C.F.R. § 1614.108(f).
On June 29, 2011, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that
even if Complainant could establish a prima facie case, the Agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Concerning Complainant's AWOL claim, the Agency stated that Complainant
did not comply with Agency policy authorizing medical leave, which
required that such requests be supported with written documentation
from a medical provider. Because of Complainant's failure to comply,
Complainant's supervisor recorded her as being AWOL in accordance with
applicable Agency policy and procedures. Regarding Complainant's
purported "bonus promise," there is no evidence that the Medical
Center’s Administrative Assistant, who allegedly made such a promise,
had the authority either to recommend or to award a bonus. Also, the
record does not reflect that any bonus was promised to Complainant.
The AJ noted that at most, and accepting Complainant's allegation as
true, Complainant had an expectation that was unmet and in this situation,
Complainant was not aggrieved. With respect to Complainant's reassignment
to the Medical Support Assistant position, the AJ found that Complainant
was reassigned as the result of a downsizing reorganization, and there
is no evidence indicating that this reorganization was undertaken for
discriminatory or retaliatory reasons.
In conclusion, the AJ found that the events of which Complainant
complains, either individually or collectively fail to rise to the level
of unlawful harassment prohibited by the Rehabilitation Act or Title
VII. Most importantly, there is no evidence that any of the actions
or decisions of Agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment. Complainant proffers no statement on appeal.
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.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See 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”).
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee’s work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that
a reasonable person would find hostile or abusive - is beyond Title
VII’s purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the
harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability. 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 at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected
classes, management continuously subjected her to a hostile work
environment. However, we find that Complainant has not shown that she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving her protected classes, or the harassment complained of
was based on her statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where Agency management took actions that
were either adverse or disruptive to her, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent Complainant is alleging disparate treatment with respect
to her claims, even assuming Complainant is a person with a disability,
she has not shown that the Agency's reasons for its actions were a
pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
February 9, 2012
__________________
Date
2
0120113999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113999