0120101317
09-11-2012
Sheirys Bredemeier, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sheirys Bredemeier,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101317
Hearing No. 440-2007-00263X
Agency No. 200J05782006103723
DECISION
On February 19, 2010, Complainant filed an appeal from the Agency's October 28, 2009, final order (FO) 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).1 For the following reasons, the Commission AFFIRMS the Agency's FO.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that she was subjected to disability based harassment and was not provided a reasonable accommodation as requested.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Pharmacy Technician in the Outpatient Pharmacy Service at the Edward J. Hines VA Medical Center, in Hines, Illinois. On September 18, 2006 Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical), national origin (Costa Rican, Hispanic), sex (female), reprisal (instant complaint) when:
1. On or about December 2006, she was denied a reasonable accommodation and assigned duties outside of her medical restrictions; and
2. from April, 2007, her supervisor subjected her to harassment when he gave her a "hard time" about meeting with EEO officials and going to doctor appointments and other incidents.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 3, 2008, motion for a decision without a hearing and issued a decision without a hearing on September 24, 2009.
The AJ found the following facts: Complainant maintained that in January 2005, she hurt her hand in the pharmacy. In June 2006, Complainant was diagnosed with Right Long trigger finger and scheduled for surgery on June 23, 2006. Complainant's medical restriction after her surgery consisted of minimal use of right hand. In response to this restriction, Complainant was given limited duties of answering the telephone and handing prescriptions to patients.
On June 26, 2006, while Complainant was working answering the telephones to help fill prescriptions, she was told that if her right hand was troubling her that she should use her left hand, which was consistent with her medical restrictions at the time. On September 14, 2006, Outpatient Pharmacy Supervisor (S1) requested that Complainant have her doctor review her job description and document what work Complainant could do in the outpatient pharmacy. By letter dated September 16, 2006, S1 gave Complainant until September 26, 2006, to provide the previously requested information. Complainant alleges that on September 16, 2006, she verbally requested S1 to provide her with a reasonable accommodation because of her injury and by letter dated September 18, 2006, Complainant outlined the tasks she could perform.
By letter dated September 12, 2006, from the Department of Labor, S1 was given Complainant's Work Capacity Evaluation which provided work restrictions of no forceful grasping with right hand and no lifting, pulling and pulling of more than five pounds with right hand. S1 was also advised that Complainant was scheduled for physical therapy three times a week for four weeks on September 12, 2006.
By letter dated September 26, 2006, Complainant was provided with and accepted a limited duty modified job assignment in the outpatient pharmacy that was consistent with her identified medical restrictions. Complainant continued to experience problems, however, with her hand and on March 8, 2007, she was scheduled for another surgery on her right hand. After the surgery Complainant was restricted from using her right hand at all for approximately one month.
After Complainant's surgery, she alleges that S1 gave her "a hard time" when she requested leave to provide care for her son, to attend doctor's appointments, and to meet with EEO and union officials. She also maintained that she had to work under close scrutiny from S1. Complainant further alleges that on April 11, 2007, S1 changed her request for Leave Without Pay (LWOP) to sick leave without her consent; on April 30, 2007, she had to request help from DOL to talk to S1 regarding her physical therapy; in May 2007, S1 called the payroll office to determine if she was at work; on August 23, 2007, S1 counseled her about being late for work; on September 8, 2007, she was assigned to the position of Patient Assistant as an accommodation for her injury; in the month of September, despite being reassigned as a Patient Assistant she was still required to fill the robot in the pharmacy; her lunch and breaks were scheduled; in October, S1 yelled at her in front of a patient; she was prohibited from leaving her work station; her sick leave was denied and she was otherwise continually harassed by S1.
The AJ found that Complainant established a prima facie case of national origin, sex and reprisal discrimination. Also, although the AJ assumed that Complainant established a prima facie case of disability discrimination, the AJ found that Complainant failed to establish that the Agency did not provide her with a reasonable accommodation. According to the AJ, the evidence showed that from the time Complainant's injury was finally diagnosed, she was allowed to work the telephones and perform other responsibilities within her medical limitations. The AJ noted that while Complainant pointed to incidents immediately following her surgery when S1 asked her to help fill prescriptions as evidence of her being worked outside of her medical restrictions, the AJ noted that Complainant's restrictions provided for "limited use of right hand." Further, the evidence showed that Complainant was specifically told to use her left hand if her right hand bothered her. The AJ also found that when Complainant requested an accommodation in September 18, 2006, her request was granted on September 26, 2006. Further, Complainant's accommodation continued as evidenced by her being reassigned as a Patient Assistant in August 2007.
Further the AJ found that the evidence of record showed that those employees who normally worked with Complainant and were familiar with S1's interactions with her acknowledged that S1 treated Complainant more stringently and that there was tension between them. The AJ noted that a coworker testified that he had to intervene on Complainant's behalf several times to stop S1's behavior towards Complainant. However, the AJ found that the incidents taken together did not rise to the level of pervasiveness that was sufficient to create a hostile working environment and alter her working conditions. In this regard, the AJ noted that the majority of the incidents of alleged harassment raised by Complainant did not establish that S1 harassed her. For example, Complainant's reassignment as a Patient Assistant was an effort to accommodate her. The AJ determined that Complainant did not experience a loss in pay or grade. Further, Complainant's lunch and breaks had to be scheduled because of a request by Complainant's doctor. The AJ further found that Complainant's assertion that that she was "required" to fix the pharmacy's robot was not supported by the evidence. The AJ found that S1 did not want or expect Complainant to fix the robot. The pharmacy employees asked Complainant to fix the machine on several occasions and Complainant obliged them. The AJ concluded that based on the undisputed evidence in the record, Complainant failed to demonstrate that she was discriminated against or harassed as alleged.
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 raises numerous issues on appeal. In relevant part, she argues that the harassment she was subjected to was severe and affected her life. Complainant also argues that the Agency failed to conduct an appropriate investigation because several of her witnesses were not interviewed. Complainant also argues that her reassignment to Patient Assistant prevented her from any opportunities to advance.
The Agency requests that we affirm its FO.
ANALYSIS AND FINDINGS
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). On appeal, Complainant does not contest the AJ's finding that she was provided a reasonable accommodation with regard to claim 1. Accordingly, the Commission exercises its discretion and will not address claim 1 in this decision.
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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding.
To establish a claim of hostile environment harassment, 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). 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. at 6 (March 8, 1994).
Here, Complainant asserted that based on her statutorily protected classes, management subjected her to a hostile work environment. We find, however, that Complainant has not demonstrated that she was subjected to conduct that was sufficiently severe or pervasive to establish that a hostile work environment occurred. We note, that with regard to certain incidents, the record clearly indicates that they did not occur as alleged or the Agency explained why the actions were taken, as found by the AJ above. The record also reveals that S1 testified that he never denied Complainant's requests for leave or to schedule EEO counseling. Complainant, in many emails in the record asserts that this is the case, but has not demonstrated that S1 has actually denied her requests.2 Indeed, in an email from the EEO Counselor, Complainant is reminded that she must request official time, just like any other leave.
On appeal, we note that Complainant states that "[S1] made my life a living hell and made my ability to do my job extremely hard." However, we find no persuasive evidence that the incidents presented in support her claim were based on discriminatory animus, but rather appear to be everyday workplace interactions, which include professional disagreements, differences in management styles, and personality conflicts.
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 FO adopting the AJ's decision without a hearing finding that Complainant failed to establish she was 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
__9/11/12________________
Date
1 We note that Complainant stated in her Notice of Appeal that she did not receive the Agency's FO until January 21, 2010. Because the Agency does not contest the timeliness of this appeal, the Commission declines to address the matter and will address the merits of Complainant's appeal.
2 We note that, in addressing an Administrative Judge's issuance of a decision without a hearing, a complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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0120101317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101317