0120122387
11-15-2012
Yolanda D. Kennedy, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Yolanda D. Kennedy,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120122387
Hearing No. 480-2010-00194X
Agency No. YU-09-0020
DECISION
On May 14, 2012, Complainant filed an appeal from the Agency's April 2, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to demonstrate that she was subjected to discrimination as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether the EEOC Administrative Judge (AJ) correctly dismissed this case based on the doctrine of collateral estoppel and/or properly issued a decision without a hearing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Assistant, OS-07 at the Agency's Customer Liaison Center (CLC) facility in Carson, California. The Director of the unit was stationed in Atlanta, Georgia, so most of his communications with the thirty-six employees at Complainant's facility were done via email. Before March 2008, Complainant worked for the CLC and its predecessor organization, but did not report to the Director. Her appraisals were generally Outstanding. On September 5, 2007, Complainant tripped over a trash can at work, sustaining a tear to the medial meniscus of her right knee. She filed a claim with the Office of Workers' Compensation Programs ("OWCP") which was accepted on January 30, 2008. Her position was a full-time sedentary position that provided administrative support to the CLC. Specifically, she processed travel orders in the Defense Travel System, maintained financial and travel budget records, and helped with brochures and marketing materials. She was also assigned to administer the web-based Portal that the CLC used to manage its business virtually, and had security duties in connection with obtaining the Customer Liaison Representatives access to secure facilities.
Complainant began teleworking because of her injury on January 7, 2008. She teleworked at least a portion of every day that she worked in January, and teleworked a total of 355 hours between January 1 and March 27, when she had surgery. In March 2008, Complainant was reassigned to the Director's organization from the position of Program Assistant to Management Assistant effective May 25, 2008. She retained the same duties and was charged with helping the Director perform his management functions. Complainant complained to her union steward, about the position change because she felt the Director was abrupt and curt.
The Director understood that as a result of Complainant's surgery, her doctor had temporarily restricted her mobility and work hours during her recovery period. He therefore agreed to allow Complainant to telework until her doctor would allow her to return to the office environment. Complainant was allowed to work from home every day for the four hours her restrictions permitted her to work. The Director told Complainant, prior to approving her telework agreement, that it was not his practice to approve telework for an employee who had not demonstrated to him a proper work ethic and the ability to perform all elements of her position description. As she was a new employee, the Director had not been able to observe whether she met these criteria but because of her medical situation he was making an exception by allowing her to telework while recovering from surgery. He indicated that he did not intend to allow her to telework permanently, but only while recuperating.
Complainant was off work recuperating for seven weeks, when she returned to work on May 20, the Director allowed her to telework 4 hours per day, the maximum number of hours she was permitted to work. Complainant was allowed to telework exclusively until August 25th, with the exception of one day when she came into the office. She teleworked for a total of 193.5 hours between August 25, 2008 and January 30, 2009. During this time period she received a midterm evaluation where she was told that she needed to improve on two elements.
In October 2008, Complainant requested and the Director approved telework every Thursday and Friday from 7:30 to 11:30 a.m., this request was based upon Complainant's inability to drive to and from work. The Director became concerned about productivity so he sent Complainant's request and medical information to the Federal Occupation Health Service (FOH) for evaluation. Complainant's doctor on December 4, 2008, suggested that her telework schedule be six hours per day; three days each week, and four hours per day; two days each week. The FOH doctor, however, found that due to the sedentary nature of her position, telework was not needed to perform her duties. As a result, the Director terminated two days of Complainant's telework, effective January 26, 2009.
The Director also told Complainant that he felt that he was being taken advantage of because he had been very accommodating throughout her surgery and recovery. He told Complainant that she could lose her position if she did not return to work full time. The Director told her that he could only accommodate her part-time work schedule for so long. The Director told Complainant that she had been working part-time for over a year and during that time both he and others had had to complete work that would have been Complainant's had she been able to work full-time. The Director also cited deficiencies in her performance and he indicated that she took too long to complete what he believed to be basic assignments. Therefore, he issued her a Letter of Instruction which listed her assignments, asked her to provide weekly updates to what she had accomplished, ordered her to move her office to the same floor as the other Management Assistants, and he revoked her telework privileges. On May 7, 2009, OWCP requested a second opinion regarding Complainant's condition. The doctor found that Complainant was limited to working a maximum of six hours per day, three days per week, sedentary work. She was limited to sitting for thirty minutes at a time and was required to have a five-minute break every thirty minutes. She was also limited to thirty minutes of walking and was prohibited from twisting, bending, stooping, pushing, pulling, lifting, kneeling, squatting or climbing. The doctor projected that Complainant's physical restrictions would continuing for twelve to eighteen more months.
Thereafter, the Agency conducted an individualized analysis of Complainant's request for another year to a year and a half of part-time work in a full time slot. The Director indicated that he needed a full-time Management Assistant and maintained that he could not manage the administrative workload with a part-time employee, because in part, he had to do part of her job. He then determined that he could no longer accommodate Complainant's part-time schedule, and on June 4, 2009, he wrote to OWCP and asked that Complainant be placed in the vocational rehabilitation program and on periodic roles. The Agency thereafter conducted an Agency-wide search for part-time vacancies at Complainant's level and below, but no part-time vacancies were identified, however.
On June 10, 2009, the Director proposed Complainant's removal because she was unable to perform her full time job due to her work-related injury and restrictions, and had been unable to perform those duties for more than one year. On June 18, 2009, Complainant submitted an application for disability retirement. On July 24, 2009, an email was again sent to all Senior Leaders requesting information about part-time vacancies. Again, no vacancies were identified. On July 28, 2009, the Executive Director for Operations in Customer Relations, issued a decision removing Complainant. Although her years of service and other factors were considered, a determination was made that Complainant's limited and sometimes unpredictable availability for work, as well as the absence of any part-time vacancies in the Agency, left no alternative. Complainant's removal was effective August 7, 2009. Complainant appealed her dismissal to the Merit System Protection Board (MSPB). The MSPB held a hearing which considered Complainant's affirmative defenses of disability discrimination, denial of reasonable accommodation, reprisal, and hostile work environment. The MSPB AJ upheld the termination decision.
On March 6, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of disability (knee injury) and reprisal for prior protected EEO activity when:
a. She received a Notice of Proposed Removal dated June 10, 2009;
b. On May 12, 2009, the Director made false allegations regarding her performance;
c. She was forced to pack up her cubicle and move boxes to another office that resulted in an alleged work injury;
d. On April 14, 2009 she received a Letter of Instruction;
e. On or around April 14, 2009, the Director verbally attacked her and threatened to have her removed if she could not come to work fulltime, which forced her to resubmit a reasonable accommodation request based on a worker's compensation related injury;
f. On April 13, 2009, the Director disapproved her worker's compensation leave request;
g. On April 9, 2009, her Director terminated her telework agreement;
h. On February 2, 2009, she received her 2008 Performance Rating, which she believed should have given her higher ratings for Critical Elements 2 through 6;
i. On or around January 26, 2009, the Director threatened to fire her and told her that if she did not come back to work full-time she would lose her job;
j. On or around January 26, 2009, the Director terminated her two day telework schedule; and
k. On or around January 23, 2009, the Director threatened to fire her and stated, "Legal told me to get firm with you" and "I don't like being taken advantage of".
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. The AJ dismissed the case based upon the prior proceedings before the Merit System Protection Board (MSPB), wherein Complainant appealed her termination to the MSPB and asserted affirmative defenses based on disability, denial of reasonable accommodation, and reprisal. An MSPB Administrative Judge held a hearing, ruled against Complainant and made factual findings on allegedly disputed facts that were also at issue in the pending EEOC case. The AJ found that the MSPB-AJ upheld the termination and found that Complainant failed to show that she was subjected to discrimination or a hostile work environment. The AJ found that the doctrine of collateral estoppel was applicable in this case, and that the dismissal of Complainant's hostile work environment, harassment, retaliation and denial of reasonable accommodation claims on the basis of disability and prior EEO activity was appropriate. The AJ noted that while Complainant clearly disputed the correctness of the MSPB Administrative Judge's findings and conclusions, the forum for raising such arguments was an appeal to the full Merit System Protection Board, and not in a subsequent EEO administrative hearing before the Commission.
Assuming, arguendo, dismissal was not appropriate, the AJ granted over Complainant's objections, the Agency's May 19, 2010, motion for a decision without a hearing and issued a decision without a hearing on March 22, 2012. The AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons offered were pretext for discrimination. The AJ found that Complainant failed to demonstrate that she was subjected to discrimination or a hostile work environment. 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
On appeal, Complainant contends that the AJ's decision dismissing her complaint was improper. Complainant asserts that collateral estoppel should not apply to this matter because she did not have a full hearing regarding her hostile work environment claims. Moreover, she maintains that material facts are at issue in this case and therefore her claims should go before an EEOC AJ for a hearing.
In response, the Agency argues that Complainant is barred by collateral estoppel from re-litigating issues previously decided by the MSPB. Notwithstanding, the Agency asserts that it accommodated Complainant's medical condition for an extended period of time. And, when it was no longer able to accommodate her part-time restrictions in her full-time position, the Agency searched for a part-time position to accommodate her but it was unable to find such a position. Further, the Agency maintained that the evidence did not support her claim of hostile work environment and retaliation. The Agency maintained that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination.
STANDARD OF REVIEW
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 both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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. Dep't of Def., 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).
ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a Complainant has elected to pursue the non - EEO process. However, in the instant case, the Commission notes that the MSPB decision was not included in the file. Therefore, the Commission is unable to address whether Complainant's harassment/hostile work environment claim was addressed in that decision. Accordingly, we cannot determine whether Complainant is estopped from raising these claims.
With respect to the AJ's decision without a hearing we find that the AJ correctly issued this decision as there are no material facts at issue in this case. We find that, even assuming Complainant established a prima facie case of discrimination as to all bases, the record reveals that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show that the reasons were pretext for discrimination. First, the Agency noted that it provided Complainant with reasonable accommodations for an extended period of time. The Agency maintains that it allowed Complainant to telework for over a year. The Agency allowed Complainant to use leave to attend medical appointments and allowed her to work part-time in a full-time position for more than a year. The Agency further explained that the Director and other employees were required to do Complainant's work assignments due to her part-time schedule. The Director maintained that after Complainant's doctor indicated that she would need to work a part-time schedule for another year to year and a half, he indicated that this situation was untenable for him because he had to complete her work; so when he could no longer accommodate Complainant's part-time restrictions in her full-time position, he requested that the Agency search for a part-time position to accommodate her. After several searches no positions were found and Complainant failed to identify any vacant funded positions. The Agency asserts that Complainant has not shown that the Agency's reasons were pretext for discrimination.
Further, with respect to Complainant's allegations that she was subjected to a hostile work environment, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency explained that on January 23 and 26, as well on other occasions, when the Director told Complainant that it was possible she could lose her position (allegations g, i, and k), he was warning her that he could only accommodate her in a part-time status for so long and that the Agency would have to look into reassigning her if it could no longer do so. The Agency maintained that his e-mails on the subject demonstrate that he was relaying information and not harassing her.
Further, the Director's comments about Complainant's performance (allegations b and f) were based upon his opinion that she was not performing her duties as well as she should be. Specifically, he believed it took Complainant too long to complete assignments (if they were completed at all), and he did not believe the quality of her work was adequate. Further, the Agency explained that the Director issued Complainant a non-disciplinary Letter of Instruction (allegation d) because her union representative suggested that he put his expectations for Complainant in writing, and the Director thought that was a good idea. There was nothing harassing about the Letter of Instruction as it merely provided Complainant with direction. Further, the Agency explained that the Director decided to move Complainant from the second to the first floor (allegation c) for two reasons: first, so that she would be located with her team in Carson, and could obtain their assistance when Portal problems surfaced. Secondly, in the event of an emergency, Complainant would have been able to more easily evacuate. Neither of these reasons suggests a discriminatory animus and was consistent with the Director's desire to help Complainant improve her performance.
Additionally, the Director reduced, and then ended Complainant's telework schedule (allegations e, j and h) because of documented concerns about her performance. Likewise, the Director proposed Complainant's removal (allegation a) because he could no longer accommodate her in a part-time status, and because the Agency had no part-time positions that were vacant. Her supervisor's motivation was her inability to work full time, not because he wanted to harass her because of a disability or reprisal.
The Commission finds that Complainant has failed to show that the Agency's articulated reasons were pretext for discrimination.
Finally, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), we find that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 without a hearing and the Agency's final order which found that Complainant failed to demonstrate that she discriminated against as alleged.
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
___11/15/12_______________
Date
2
0120122387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120122387