U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trina C.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120150570 Hearing No. 451-2013-00039X Agency No. ARBLISS12FEB00882 DECISION On November 21, 2014, Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 23, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case without a hearing; and (2) whether the AJ properly determined that the preponderance of the evidence in the record did not establish that Complainant was discriminated against based on race, sex, color, and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-11 Budget Analyst at the Agency's 5th Armored Brigade Resource Management Organization (RMO) facility in Ft. Bliss, Texas. Complainant's first-line supervisor (S1) was a Supervisory Budget Analyst, her second-line supervisors (S2 and S3) were the Brigade Deputy Commanders, and her third-line supervisor (S4) was the Brigade Commander. Complainant's coworkers in the RMO were two GS-9 Budget Analysts (C1 and C2). Complainant stated that she, C1, and C2 work in the same office. Complainant alleged that S1 has a habit of pulling her into the hallway when S1 wants to speak with her. Complainant also asserted that C1 and C2 are treated differently because S1 will send Complainant into the hallway when S1 wants to speak with C1 or C2. S1 stated that she pulls C1 out into the hallway when she needs to talk to him. S1 alleged that sometimes she will ask Complainant and C1 to leave the office when she needs to talk to C2 because C2 has a mobility impairment. C1 confirmed that it is common practice for S1 to call him out into the hallway when she needs to talk to him. C1 also stated that he has been asked on occasion to leave the room so that S1 can speak to C2. Complainant noted that C1 is a Black male. According to the record, C2 is a White female. Complainant suggested that S1 may have a problem with her because she is a strong-minded Black woman. Complainant stated that on February 24, 2012, S1 pulled her into the hallway to tell her that she would be receiving leave without pay (LWOP) for her February 22, 2012, absence. According to S1, she had to ask Complainant to come with her into the hall several times before Complainant complied. Complainant said that she did not immediately follow S1 into the hallway because she went to the bathroom first. S1 said that she pulled Complainant out in to the hallway to give them privacy but also because Complainant had been violent in the past, yelling at S1 and causing a commotion. According to Complainant, she asked S1 why S1 always pulled her out of the office to speak with her, and S1 told Complainant to shut up. S1 denied telling Complainant to shut up. C1 and C2 stated that they did not hear S1 tell Complainant to shut up. According to Complainant, in or around February 2012, S1 gave C1 and C2 either a cash award or a step increase, but Complainant received nothing. Complainant acknowledged that she was a GS-11, Step 10 employee and could not have received a step increase, but she said that she should have received some kind of performance award because she was more proficient at her job than C1 or C2. Complainant stated that she was told that she was ineligible for a performance award for FY 2011 because she received a two-week suspension in 2011. S3 said that FY 2011 performance awards were not distributed until August 2012, so Complainant would not have received one even had she been eligible because she had been removed from federal service by that time. On March 16, 2012, S1 issued Complainant a Notice of Proposed Removal. The Notice of Proposed Removal listed three charges as the basis for the proposed removal: creating a disruption in the workplace, insubordination, and failure to observe Administrative Control Leave (ACL) restrictions. With respect to the charge of creating a disruption in the workplace, according to the notice, on January 27, 2012, Complainant created a disruption in the workplace when S1 suggested that she ask C1 for help and Complainant started yelling and became disruptive and confrontational, so S1 asked S2 and S3 to escort Complainant out of the building to calm her down. C1 stated that on January 27, 2012, Complainant was speaking with an elevated voice but was not yelling at S1. C2 stated that Complainant was yelling at S1 on January 27, 2012. S3 stated that when he and S2 arrived at the office space, Complainant was visibly agitated with an angry tone and volume. S1 stated that on January 27, 2012, Complainant was "out of control." Regarding the charge of insubordination, the notice also states that on February 24, 2012, S1 asked Complainant to step into the hallway and Complainant refused several times. According to the notice, Complainant eventually followed S1 into the hallway, where S1 told Complainant to submit a leave slip for LWOP for February 22, 2012, and adjust her time card to reflect LWOP for that date, which, as of February 29, 2012, Complainant failed to do. Complainant stated that any delay in submitting a leave slip or adjusting her time card was not willful. Finally, the Notice of Proposed Removal stated that Complainant violated the ACL restrictions, which were placed on Complainant on April 19, 2011, and were in effect for 12 months. S1 stated that Complainant was subject to the ACL restrictions because she had been abusing leave by calling in to take leave on Mondays, Fridays, or the day before or after a holiday. According to the ACL restrictions, Complainant was required to request annual leave in advance and that any emergency annual leave requests would be considered on a case-by-case basis. According to the notice, on February 22, 2012, Complainant did not report to work and was not scheduled to be on leave, so S1 called Complainant's personal cell phone and emergency contact and received no response. The notice stated that S1's Blackberry had not been working, but when S1's Blackberry started working again a few days later, S1 received a February 22, 2012, voicemail from Complainant requesting annual leave for that day. According to the Notice of Proposed Removal, leaving a voicemail for S1 violated the ACL restrictions, so Complainant was charged LWOP for that day. Complainant stated that she had left a voicemail for S1 to request leave in the past while she was under the ACL restrictions. S1 admitted granting leave requested by Complainant through voicemail in the past, but she said that she had counseled Complainant about the proper procedures for requesting leave while under the ACL restrictions when she granted those leave requests. The Notice of Proposed Suspension noted that this was Complainant's fourth formal offense because in April 2009 Complainant received a 10-day suspension for misuse of a government credit card, in April 2010, Complainant received a three-day suspension for misuse of a government travel card, and in May 2011 Complainant received a 14-day suspension for failure to work on assigned duties, defiance of authority, and discourtesy to a supervisor. A Human Resources Specialist (H1) said that, based on the table of penalties, removal was the appropriate action for management to take under the circumstances. On March 28, 2012, Complainant submitted a written response to the proposed removal. On April 3, 2012, S4 issued Complainant a Notice of Decision on Proposed Removal, which informed Complainant that she would be removed from federal service effective April 6, 2012. On April 5, 2012, S4 issued Complainant an Amendment to Notice of Decision on Proposed Removal, which changed the effective date of Complainant's removal to April 16, 2012. According to Complainant, S1 issued the proposed removal because of Complainant's EEO activity because some of the incidents that formed the basis of the proposal were also part of Complainant's informal EEO complaint, which Complainant initiated on February 29, 2012. S1 alleged that she was notified in late February or early March 2012 that Complainant had contacted an EEO Counselor, but she stated that she did not know what Complainant had filed an informal complaint about until she was notified by the investigator during the investigation into Complainant's formal complaint. According to S1, she decided to consult Human Resources about how to discipline Complainant after the January 27, 2012, incident. S4 stated that he became aware of Complainant's EEO activity around mid-March 2012. Complainant is an African-American female with light Black skin. Complainant's prior protected activity consists of initiating contact with an EEO Counselor on February 29, 2012, regarding allegations 1 and 2. On May 2, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (light-skinned Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On February 24, 2012, Complainant alleged that S1 has a habit of sending Complainant outside when she has to speak to her or send her outside when she speaks to her coworker in the office. Further, Complainant alleged S1 has created a hostile work environment for her when she told Complainant to shut up and be quiet when Complainant asked S1 why she always had to leave the office and others who are White or male do not; 2. On February 27, 2012, S1 gave C1 and C2 a cash award and/or a step increase, while Complainant allegedly received nothing; and 3. On April 16, 2012, Complainant was terminated by S1. 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 AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's June 14, 2013, motion for a decision without a hearing and issued a decision without a hearing on October 14, 2014. The AJ found that the record had been adequately developed for a decision without a hearing. The AJ determined that Complainant failed to establish a prima facie case of discrimination or that the Agency's proffered legitimate, nondiscriminatory reasons were pretext for discrimination. 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. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she presented evidence establishing that the Agency's reasons for terminating her were pretext. For example, Complainant argues that because S1 had approved Complainant's leave requested by voicemail in the past, she followed proper procedures for requesting leave on February 22, 2012. Further, Complainant maintains that her supervisors were aware of her EEO activity prior to issuing the Notice of Proposed Removal. Complainant requests that the Agency's final order be reversed. In response to Complainant's appeal, the Agency contends that Complainant has not established a prima facie case of discrimination or that its legitimate, nondiscriminatory reasons were pretextual. The Agency requests that its final order be affirmed. 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 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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"). Decision without a Hearing 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. 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). Here, we find that the case was properly decided without a hearing because there is no genuine issue of material fact. Disparate Treatment 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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that she was discriminated against in February 2012 when she did not receive a step increase or a performance award. The Agency has provided legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was a GS-11, Step 10 employee, so she was not eligible for a step increase. Further, FY 2011 performance awards were not distributed in February 2012, and Complainant also was not eligible for a FY 2011 performance award because she was suspended for two weeks during the performance evaluation period. The preponderance of the evidence does not establish that these legitimate, nondiscriminatory reasons are pretext for discrimination. Complainant also alleged that she was discriminated against when she was removed effective April 16, 2012. The Agency presented legitimate, nondiscriminatory reasons for removing Complainant, which were the three charges of creating a disruption in the workplace, insubordination, and failure to observe ACL restrictions, as well as the three suspensions that had previously been issued to Complainant. Complainant disputed creating a disruption in the workplace on January 27, 2012, but witness testimony corroborated S1's account of what happened that day. Regarding February 24, 2012, S1's statement about what occurred conflicts with Complainant's statement about what occurred. However, Complainant did not deny failing to submit a leave slip and modify her time card in a timely manner. Finally, with respect to leaving a message on S1's voicemail, while Complainant identified previous occasions where leave requests submitted by voicemail message were approved, Complainant does not contest that she knew that such a practice violated the ACL restrictions. The preponderance of the evidence in the record does not establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discriminatory or retaliatory animus. Harassment To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). With respect to element (5), 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. See 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). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; 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. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. Here, there is no evident connection between the alleged harassment and Complainant's race, sex, color, or prior protected activity. With respect to S1 pulling Complainant into the hallway to speak with her, C1, a Black male, confirmed that it was common for S1 to pull him out of the office to speak with him, and S1 explained that on occasion she would ask Complainant and C1 to leave the office when she needed to speak with C2, a White female, because C2 has trouble walking. The preponderance of the evidence in the record does not establish that S1 told Complainant to shut up. Accordingly, we find that Complainant has failed to establish a prima facie case of a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order because the case was properly decided without a hearing and the preponderance of the evidence in the record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-0570 10 0120150570