0120123011
01-11-2013
Agnes L. Heithecker, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Agnes L. Heithecker,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120123011
Hearing No. 450-2011-00157X
Agency No. 10-83447-00867
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 15, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Education Technician, GS-1701-04, at the Agency's Morale Welfare Recreation, Child Development Center, Naval Air Station, Joint Reserve Base in Fort Worth, Texas.
On April 21, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (Yupik Eskimo), sex (female), and age (over 40) when:
1. on March 5, 2010, she received a three-day suspension;
2. on January 4, 2010, she received a Memorandum for the Record for giving her first-level supervisor photocopies of a doctor's note, instead of the original copy;
3. on December 11, 2009, she received a Letter of Requirement for abuse of sick and annual leave; and
4. on September 29, 2009, she was investigated by management for a complaint filed by a co-worker.
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 Agency thereafter filed a Motion for Summary Judgment on November 23, 2011. The AJ granted a portion of the Agency's motion that claim 1 should be dismissed on the grounds that Complainant raised the same matter in a negotiated grievance process, pursuant to 29 C.F.R. � 1614.107(a)(4) and claim 4 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ, however, did not grant a portion of the Agency's motion that claims 2 and 3 should be dismissed for failure to state a claim, pursuant to 29 C.F.R � 1614.107(a)(1).
Following a hearing held on February 23, 2012, the AJ issued a decision finding no discrimination concerning claims 1 - 4. The AJ found that Complainant did not establish a prima facie case of race, sex and age discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and age. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The AJ noted that in regard to claim 1, Complainant's third-level supervisor testified that while Complainant was a good worker taking care of children at the Agency's facility, but that Complainant did not get along with her supervisors and co-workers. The third-level supervisor stated that in March 2010, he issued Complainant a three-day suspension based on two incidents. Specifically, the third-level supervisor stated that the first incident occurred in September 2009, when Complainant allegedly took a hula hoop from another teacher. The second incident occurred in December 2009, when Complainant argued with the teacher about a camera. The third-level supervisor testified that the directors did not want to confront Complainant because of her temper.
The third-level supervisor stated that in regard to the second incident, Complainant felt that a teacher had a camera "that maybe belonged with her group, but yet the camera didn't belong with her group it was a different camera [teacher] had." The third-level supervisor stated that management tried to explain to Complainant "that it was not her camera that she was mistaken, and they worked that out. They got the camera situation settled out, but later when [co-worker] went into a breakroom or some room with other coworkers, [Complainant] made comments that were very demeaning that were - - that upset [teacher] very much. In fact, they embarrassed her, embarrassed her totally. She came by my office, [teacher] did later crying, and then I said we'd look into it, investigate it, which we did."
The third-level supervisor stated that Complainant's former first-level supervisor proposed that Complainant be suspended for five days based on the two incidents. The third-level supervisor stated, however, he reduced the proposed five-day suspension "down to three days. I felt it was a three-day suspension, and not warranted a five-day suspension."
The Lead Education Technician (Technician) stated that in September 2009, the teacher contacted her and told her what had happened "with her and [Complainant]. She stated that [Complainant] was abrupt with her and was very loud with her, and .... [the teacher] was - - crying on the phone, and I told her I would handle the situation. She said [Complainant] snatched the hula hoop from her, and they had words out on the playground in front of the kids. At that time I did, because [teacher] was off the clock, I did assure her that I would, you know address the situation the next workday." The Technician stated that the next day she told Complainant's former first-level supervisor about the incident between Complainant and the teacher, and she asked her to write a statement concerning the incident.
The Technician stated "because we have to use the cameras that the teachers use and at this particular time the staff had moved from the new building, because of the flood, into just a temporary building, and I let [teacher] borrow a camera and for some reason [Complainant] thought it was her camera." The Technician further stated when she became aware of the conflict between Complainant and the teacher concerning the camera, she informed Complainant that it was not her camera and that she allowed the co-worker use the camera from building 3190. The Technician stated that Complainant stated "no. that's my camera, because it has the pictures from the flood and she just went on and on. And she was - - she was upset, and again I repeated '[Complainant], that is not your camera. That is camera number three.' She insisted that it was her camera, and she was upset. She walked away, and then later on, within a few minutes she realized it wasn't her camera. Her camera is number 12 so she came back and said, I guess I'm sorry, and at that point it was, you know, the [insubordination] and disrespect had already taken place."
In her testimony, the teacher stated that when she and Complainant moved to another facility and "it had two preschool classrooms and of course we brought all of our things from the other center into that classroom, and I had a camera. Well, each class had a camera and our camera that we had come from the other center with us. I remember [Complainant] coming in and saying that the camera we had in our classroom belonged to her, and I said, No, that's not your camera, that's our camera. It was like we were going back and forth as far as I'm trying to convince her that that was not her camera."
The teacher stated that she later informed the Technician what had happened, and also wrote a statement concerning the incident. The teacher stated that the incident "upset me because in my mind I was like here we go again, and that's what was going through my mind and the thing about it, I knew I was innocent, and I knew what I was saying was the truth, and to me it was just directed to me, because I was the one that was dealing with the camera, something to that effect."
Regarding claim 2, the AJ noted on January 4, 2010, Complainant was issued a Memorandum for the Record for allegedly providing photocopies of a doctor's note instead of the original document. In her testimony, Complainant stated that after she was told to produce appropriate medical documentation, it was faxed to her supervisor from the doctor's office.
Regarding claim 3, the third-level supervisor stated that in December 2009, Complainant received a Letter of Requirement for abuse of sick and annual leave. Specifically, the third-level supervisor stated that between December 2008 and December 2009, Complainant used a considerable amount of leave and used leave as soon as she accrued it. The third-level supervisor also stated that a doctor's note from Complainant was deficient in several aspects and that it did not have a justification for her absence.
The Technician stated that during the relevant time Complainant's sick and annual leave balances "were very low, and it - - seemed like [Complainant] was using leave almost as she was accruing her leave." The Technician stated that Complainant also had a pattern for taking unscheduled leave which "makes it very hard on the center and the director that are in place."
Regarding claim 4, the AJ noted that Complainant testified that on September 29, 2009, her class was moved into a new building because of safety issues in the old building. Complainant further stated that her co-worker was unhappy with the situation and Complainant had never worked with her prior to this. The AJ noted that the co-worker then spoke to the Lead Teacher. The AJ further noted that the following day, the Technician asked to see the class room lesson plan and told Complainant that she was not conducting an investigation into the co-worker's claims.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.1
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
January 11, 2013
__________________
Date
1 Because we affirm the AJ's finding of no discrimination concerning claims 1 and 4 as addressed above, we find it unnecessary to address these claims on alternative procedural grounds (i.e. elected the negotiated grievance process and untimely EEO Counselor contact).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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