Ingrid Muhammad, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Office of the Chief Financial Officer), Agency. Appeal No. 0120072777 Hearing No. 270-2005-00135X Agency No. OCFO200400332 DECISION Complainant filed an appeal from the agency's final action dated April 23, 2007, finding no discrimination with regard to her complaint. The record indicates in her complaint dated August 2, 2004, complainant alleged discrimination based on race (Black), sex (female), and in reprisal when: 1. She was subjected to ongoing harassment (sexual/non-sexual) which created a hostile work environment in that: (1) on December 29, 2003, January 12 and 20, 2004, and May 18, 2004, her supervisor (S1) advised her of unauthorized absences that were recorded as AWOL; (2) on May 23, 2004, S1 yelled at her when she sought clarification on new procedures; (3) on May 23, 2004, she was instructed to tell S1 every time she goes to the restroom, which S1 did not require of anyone else; (4) on July 4, 2004, S1 called security to have them search her bag for contraband/weapons; (5) on December 9, 2004, S1 charged into her cubicle with a demanding and intimidating tone to deliver the employee data sheet; and, (6) on December 14, 2004, she was moved to the evening shift effective December 26, 2004. 2. Complainant also alleged that she was subjected to harassment when S1: (1) watched her perform her work and "eyed" her up and down when talking with her; (2) wanted to have one-on-one meetings with her; (3) wanted her to have S1's cell phone number to call S1 directly; (4) "google-eyed" her when S1 went into S1 cabinet or to throw items into S1 trash bin; and (5) informed her that S1 was separating from S1's wife. The record indicates that complainant subsequently resigned from her employment at the agency effective March 10, 2006. This matter is not a live issue in the instant complaint. Upon completion of the investigation of the complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 8, 2005, the AJ issued a decision without holding a hearing, finding no discrimination. The agency's final action implemented the AJ's decision. 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. The Commission finds that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. In this case, the AJ determined that, assuming arguendo that complainant had established a prima facie case of discrimination, the agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. With regard to claim 1(1), S1 stated that he previously discussed complainant's tardiness and told her that if she did not come to work on time, her leave request would be denied and she would be carried as AWOL, as alleged. With regard to claims 1(2), 1(5), 2(4), and 2(5), S1 denied the incidents. With regard to claim 1(3), S1 indicated that complainant did not have the right to sleep at her desk for periods at a time, leave the work area for 40 minutes at a time and also expect to get a scheduled 15 minutes break or half hour lunch period. During the relevant time period, when S1 asked complainant where she was she would respond that she was in the bathroom. S1 stated that that was why the alleged comment was made of her informing him of her whereabouts even if it was the bathroom if she was going to be away from her workstation for that amount of time. Despite this comment, indicated S1, he had not enforced this requirement. With regard to claim 1(4), S1 stated that during the relevant time period, complainant brought a red duffle bag with her in the meeting. S1 indicated that since complainant only brought a writing pad into their meetings, he was suspicious of what the bag contained. The search was negative. With regard to claim 1(6), complainant's second level supervisor (S2) stated that complainant was moved to the alleged shift in response to her expressed desire to have no contact with S1. Complainant does not dispute this. With regard to claim 2(1), S1 stated that complainant might have watched his eyes move up and down. S1 indicated that since complainant spoke in a very low voice and when he had difficulty hearing her, he had the tendency to look down at her mouth as he would any person to understand more clearly. With regard to claim 2(2), S1 stated that whenever employees were counseled verbally, it was done in a one-on-one setting because it was considered counseling and the other employees on the shift should not know what was discussed between a supervisor and employee. With regard to claim 2(3), S1, concurred by S2, stated that all of the employees in the unit were given his business cards with his cell phone and pager numbers. S2 indicated that the employees were told to call S1 if they were going to be late. After a review of the record, the AJ determined and we agree that complainant failed to rebut the agency's legitimate, nondiscriminatory reasons for the alleged incidents. We also agree with the AJ that while complainant was offended by the way S1 allegedly treated her, the alleged incidents were not severe or pervasive enough to warrant a finding of harassment or a hostile work environment. Accordingly, the agency's final action is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208) 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 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 (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 (Z1008) 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 4/26/10 __________________ Date 2 0120072777 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013