0120064721
05-14-2008
Jacquelyn D. Collins, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Jacquelyn D. Collins,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200647211
Hearing No. 100-2004-00738X
Agency No. 0167353002
DECISION
On August 16, 2006, complainant filed an appeal from the agency's July
18, 2006 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). 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 Relocation Assistant Program Manager at the Headquarters Battalion,
U.S. Marine Corps, Navy Annex, in Arlington, Virginia.
On September 25, 2002, complainant filed an EEO complaint alleging that
she was discriminated against and subjected to a hostile work environment
on the bases of race (Black) and in reprisal for prior protected EEO
activity when:
1. her first level supervisor (S1) required her to complete a property
pass to take a laptop computer home;
2. on January 18, 2001, her first level supervisor informed her by
email that she should develop the Relocation Assistance Program (RAP)
more fully;
3. on March 22, 2001, her first level supervisor allowed another employee
to send her an email regarding missing supplies;
4. on March 28, 2001, her first level supervisor followed up on
a memorandum stating she needed to sign for RAP supplies stored in
Personnel Services storage;
5. on April 3, 2001, her first level supervisor told her if she wanted
to bring her son to work, she would have to sign him up for the Youth
Volunteer Program;
6. on April 4, 2001, her first level supervisor instructed her to secure
$600.00 worth of Metro tickets in the Adjutants safe;
7. on June 6, 2001, her first level supervisor sent her an email regarding
her tendency to do other employees' work;
8. on June 12, 2001, her first level supervisor instructed another
employee to enter her office and provide in-processing assistance to a
Marine;
9. on June 14, 2001, her first level supervisor participated with a
contractor in demanding her to provide the contractor with a "Sites Guide"
on a recurring basis;
10. on June 24, 2001, her first level supervisor denied her compensatory
time to attend a Foreign Born Family Member workshop;
11. on June 24, 2001, her first level supervisor denied her leave; and
12. on August 8, 2001, she was terminated from her position as a
Relocation Assistance Program Manager, GS-0301-09.
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 timely
requested a hearing. On June 6, 2006, the AJ assigned to the case issued
a decision without a hearing. The AJ found that the agency articulated
legitimate nondiscriminatory reasons for each action and that complainant
failed to establish pretext. The AJ also found that the events raised by
complainant, do not unreasonably interfere with her work performance,
or create an intimidating, hostile, or offensive work environment.
The AJ concluded that considered separately, the individual incidents
do not even state claims; considered jointly, they still do not compound
into a hostile work environment that permeates the work place.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
On appeal, complainant asserts that the AJ's decision finding no
discrimination is improper. Complainant asserts that the record reflects
that she was subjected to a hostile work environment and raised the same
arguments which were considered by the AJ. In response, the agency
requests that we affirm its final order implementing the AJ's finding
of no discrimination.
ANALYSIS AND FINDINGS
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) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] 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 Chapter 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").
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 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. Department of Defense, 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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since 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,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
To establish a prima facie case of harassment, a complainant must show
that: (1) complainant belongs to a statutorily protected class; (2)
complainant 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 the statutorily protected class; and (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) some basis exists to impute liability to the employer, i.e.,
supervisory employees knew or should have known of the conduct but failed
to take corrective action. See Fox v. General Motors, 247 F. 3d 169
(4th Cir. 2001); McLeod v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999).
In the instant case, we find the AJ properly issued his decision without
a hearing. We concur that no material facts remain in dispute that
required a hearing be held. We further find no reason to disturb the
AJ's finding that no discrimination occurred. We find, as did the AJ,
that complainant failed to establish a prima facie case of a hostile work
environment based on race and/or prior protected activity. We find that a
reasonable fact-finder could not conclude that the challenged incidents,
taken together, were sufficiently severe or pervasive to establish a
hostile work environment. We also conclude that complainant presents
insufficient evidence that she was singled out for this treatment because
of her protected classes.
Even assuming arguendo that complainant established a prima facie case
of race and reprisal, we agree with the AJ's finding that the agency
articulated legitimate, nondiscriminatory reasons for each incident.
We find that complainant failed to show that the agency's articulated
reasons for its actions were a pretext for discrimination; nor has
complainant shown any evidence that the agency's decision was in any
manner motivated by complainant's race, nor in reprisal for complainant's
prior EEO activity.
As to claim (1), S1 testified that the property pass is a normal procedure
for all employees to check out property outside of the building.
S1 also stated that the government equipment is checked out through
the Non-Commissioned Officer in Charge or the Administrative Assistant,
not through her.
As to claim (2), the record reveals that complainant was hired by S1
on December 4, 2001. A month or so, after she was hired, complainant
sent an email to S1 asking "Do you have any suggestions based on what
has worked in the past? Accordingly, S1 told complainant to develop
her program more fully, but merely gave supervisory advice.
As to claims (3) and (4), S1 stated that she has no knowledge of anyone
sending complainant an email about missing supplies. S1 alleged that
she does not handle the supply closet and does not recall any problems
complainant had with supplies. The record reveals that on March 22,
2001, complainant received an email from a coworker regarding "30 boxes
of pocket folders," in which the coworker asked complainant as well as
everyone, if they know about the whereabouts of the folders.
As to claim (5), the Volunteer Coordinator for the Personal Services
Division (VCPSD) (a contract employee), testified she runs the Youth
Volunteer Program and complainant told her that her son was out of
school for the summer and she [complainant] wanted him to have some
volunteer time. Then, the VCPSD told complainant she could sign her
son up for the Youth Volunteer Program and he would get credit for his
hours and would receive a "free tee shirt." S1 alleged that she does
not recall complainant talking to her about bringing her son to work.
As to claim (6), S1 testified that complainant asked if there was a safe
she could secure $600.00 metro tickets in since she was frequently out
of the office. S1 told complainant she would check with the Adjutant's
Office to see if she could use their safe and complainant agreed. S1 also
testified that she never authorized anyone to take metro tickets or any
government property home.
As to claim (7), S1 stated that she counseled complainant about getting
involved in other areas after the Child Development Manager and the
Financial Manager both complained about complainant getting involved in
their areas of expertise. According to S1, the staff also complained
that complainant was out of her office most of the time walking the
halls and gossiping.
As to claim (8), S1 testified that she does not remember telling anyone
to assist a Marine with in-processing on June 12, 2001. However, S1
stated that on that date complainant was in another building providing
the monthly Welcome Aboard briefing. S1 also testified that usually when
complainant was not available and a Marine needed relocation assistance,
the Staff Non Commissioned Officer (SNCO) or another staff member would
have assisted the Marine. S1 further stated that the Relocation office
is the only office that had maps, apartment and housing information.
As to claim (9), S1 alleged that she did not demand complainant provide
a Sites Guide to a contractor on a recurring basis. S1 alleged that
if a military family requested the guide from one of the contractor
staff members, the contract employee would have referred the family
to complainant.
As to claims (10) and (11), the record does not reveal that complainant
requested any compensatory time or overtime on June 24, 2001. Moreover,
the record reveals that June 24, 2001, was a Sunday and complainant was
not required to work.
As to claim (12), the record reveals that complainant was terminated
during her probationary period due to her unacceptable conduct.
S1 alleged that complainant was terminated because "of her conduct and
the way she created a hostile, unprofessional, uncooperative working
environment for the staff." The record reveals that in June 2001, S1
informed complainant that other staff members had complained about her,
and after that, complainant became hostile, rude and initiated complaints
against the staff members who complained about her. S1 testified that
complainant was counseled about her conduct on several occasions before
she was terminated. The Child Service Coordinator also testified that
complainant refused to work as a team and wanted to do everything
by herself. Regarding this matter, the AJ found that "complainant
demonstrates a clear pattern of resistance to her supervisor, and an
unwillingness to accept direction or criticism."
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 14, 2008
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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2
0120064721
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120064721