0120101431
07-20-2010
Jo Ann Higgins, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Jo Ann Higgins,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120101431
Hearing No. 550-2009-00264X
Agency No. HS-08-TSA-008521
DECISION
On May 26, 2010, Complainant filed an appeal from the Agency's May 4, 2010
final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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). For the following reasons, the Commission AFFIRMS
the Agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant
worked as an Executive Assistant, SV-0301-F at the Agency's Sacramento
International Airport facility in Sacramento, California.
On December 1, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of age (59) when:
1. In June 2008, Complainant observed her supervisor monitoring her
whereabouts from her vehicle;
2. On July 29, 2008, Complainant's supervisor denied her a training
opportunity;
3. On August 25, 2008, Complainant received a Letter of Counseling,
dated August 15, 2008;
4. Between early August and October 2008, management told two of
Complainant's colleagues to avoid conversing with her; and
5. In late September 2008, the Agency began requiring Complainant to
attend daily meetings with management in which she was berated.
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 April 19, 2010. 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.
CONTENTIONS ON APPEAL
Complainant maintains that there is direct evidence of age discrimination,
in that a management official referenced Complainant's pending retirement
when denying her a training opportunity; further, Complainant alleges
that management created a hostile work environment. The Agency did not
submit any briefs in support of its position.
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
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 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.
Based on a review of the file, the Commission finds that the AJ
appropriately issued a decision without a hearing, as Complainant failed
to proffer sufficient evidence to establish that a genuine issue of
material fact exists such that a hearing on the merits is warranted.
Specifically, the Commission finds that the AJ made certain that: the
investigative record was adequately developed; there were no genuine
issues of material fact; and there were no findings of fact made by
weighing conflicting evidence or assessing witness credibility.
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to h[er] compensation, terms, conditions, or
privileges of employment, because of such individual's age." 29 U.S.C.
� 623(a)(1).
Complainant is alleging that she was subjected to a hostile work
environment. Harassment is actionable only if the incidents to which
Complainant has been subjected were "sufficiently severe or pervasive
to alter the conditions of [complainant's] employment and create an
abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75 (1998); Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). To establish a prima facie case
of harassment, Complainant must show that: (1) she is a member of a
statutorily protected class and/or was engaged in prior EEO activity;
(2) she was subjected to unwelcome verbal or physical conduct related
to her membership in that class and/or her prior EEO activity; (3)
the harassment complained of was based on her membership in that class
and/or her prior EEO activity; (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 Roberts
v. Department of Transportation, EEOC Appeal No. 01970727 (September 15,
2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
The Commission finds that Complainant has not set out a prima facie
claim of harassment. Complainant fails to show that claims 2-5 were in
any way motivated by age discrimination; therefore, Complainant fails
prong 3, above. The Agency argues that the denial of the training
opportunity was due to budgetary reasons, not, as Complainant insists,
age discrimination. The Commission agrees with the Agency on this
point.1 Likewise, management testified that the letter was issued due to
Complainant's behavior at work; indeed, the record contains emails from
management to Complainant supporting this. With respect to the fourth
claim, the Commission agrees with the AJ that the record clearly supports
the fact that management was concerned with Complainant interrupting
and disturbing coworkers. It is a perfectly reasonable prerogative of
management to take measures that will keep employees on task. It is
also a reasonable prerogative of management to hold daily meetings to
plan and strategize for the upcoming day, which is why Complainant's
fifth claim also fails.
Complainant also alleges that a supervisory official monitored
Complainant from the official's car; however, Complainant offers no
evidence to support this contention. Complainant failed to show that it
interfered with her work performance or created an intimidating, hostile,
or offensive work environment. Complainant can point to no adverse
effects stemming from this incident. She assumed that the official
was monitoring her so as to catch her coming back late from a break.
The official reportedly spoke to employees who came back late from their
breaks; however, there is no evidence that the official ever spoke to
the Complainant regarding this incident. Indeed, Complainant testified
that she did not speak to the official about the alleged monitoring.
The Commission agrees with the finding of the AJ that Complainant failed
to prove age discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM.
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
July 20, 2010
__________________
Date
1 Though the management official denies it, we assume arguendo that
his remark about Complainant's purported pending retirement - made
when Complainant's request for training was denied - did take place;
however, this alone is not enough to sustain a charge of discrimination.
See Hopkins v. Defense Mapping Agency, EEOC Appeal No. 01891569 (May 17,
1989).
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0120101431
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101431