0120083824
09-09-2010
Andrea M. Symes-Creary, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Andrea M. Symes-Creary,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120083824
Hearing No. 410-2008-00084X
Agency No. 6R0M07001F08-1
DECISION
On August 26, 2008, Complainant filed an appeal from the Agency's July 23, 2008, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented on appeal is whether there is substantial evidence in the record to support the EEOC Administrative Judge's (AJ's) finding that Complainant failed to carry her burden of proof to show that she was discriminated against on the basis of race (African-American) and in reprisal for prior EEO activity when the Base Comptroller subjected Complainant to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Technician, GS-0525-06, 94th Airlift Wing, in the Comptroller's Financial Analysis Office, at the Agency's Dobbins Air Reserve Base in Marietta, Georgia.
After holding a hearing and considering all the testimony and evidence presented, the AJ made the following findings of fact. The relationship between Complainant and the Comptroller has been consistently described as strained. On or about April 19, 2006, approximately 2 or 3 days after the Comptroller arrived, Complainant confronted him regarding a decision he made for temporary duty travel of another employee in the office. At the time, the Comptroller saw Complainant's intervention as inappropriate and unprofessional. A few days later, Complainant sought to have at least one GS-9 positions in the department changed to a targeted GS-07/09 training position so that she would be eligible to apply for it, because she had never held a position above a GS-6. Complainant accused the Comptroller of attempting to deny her opportunities for advancement. The record reflects that the Comptroller's decision not to reclassify these positions was because six of his staff members were eligible to apply for the positions as classified. The record further reflects that Complainant was eligible to apply for one of these positions and the Comptroller was not the selecting official for this position.
Complainant accused the Comptroller of facilitating several other events which she alleges were discriminatory. In December 2006 and January 2007, Complainant alleges that she was prohibited from attending a budget meeting. On the morning of January 22, 2007, the Comptroller initially disapproved Complainant's request for leave without pay. After contacting the Civilian Personnel Office, the Comptroller emailed Complainant advising her that he was in error disapproving her leave. He asked her to resubmit the paperwork and he would approve it. Complainant resubmitted the paperwork on January 23, 2007, and the Comptroller approved the following day. After Complainant had been suspended for on-the-job misconduct, the Comptroller advised her that she would not be able to be compensated for performing military duties during this time. Complainant disagreed that this was proper procedure. The Comptroller double-checked and was advised that suspended civilian employees or reservists could perform, and be compensated for performing, military duties during a suspension. Complainant was permitted to perform her military duties during her suspension. Complainant alleges that in February 2007 the Comptroller criticized her work performance. The record reflects that the Comptroller contacted Complainant and Complainant's supervisor regarding a contract that had been unpaid for an extended period of time, and that the tone of these emails seemed to indicate that Complainant and the Comptroller's personalities clashed.
On April 13, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her by allegedly: (1) attempting to interfere with her military leave; (2) criticizing her work performance without justification; (3) depriving her of advancement opportunities; (4) refusing to consider her for promotion; (5) excluding her from budget staff meetings in December 2006 and January 2007; (6) disparaging her to other employees; (7) treating her in a hostile and confrontational manner; (8) discouraging her from exercising her Title VII rights by telling her in August 2006 that she is a pot stirrer, has a bad attitude, and is responsible for bringing down employee morale; (9) lowering her annual appraisal rating given by her former supervisor for the appraisal period of April 1, 2006 through March 31, 2007; and (10) suspending her for three calendar days from November 27-29, 2006. 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 held a hearing on May 23, 2008, and issued a decision in favor of the Agency on June 13, 2008. 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
The Complainant has not raised any contentions on appeal. In response to Complainant's notice of appeal, the Agency requests that the Commission affirm the AJ's decision finding no discrimination against Complainant as alleged. The Agency contends that Complainant has failed to establish that the decision of the AJ was not supported by substantial evidence in the record or was incorrect as a matter of law.
ANALYSIS and FINDINGS
Standard of Review
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Disparate Treatment and Harassment
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment based on race, sex, disability, age, or reprisal, complainant must show that: (1) she is a member of the 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 the statutorily protected class; and (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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 (March 8, 1994). Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We find substantial evidence in the record to support the AJ's finding that Complainant failed to demonstrate that any of the Comptroller's behavior complained of was based on discriminatory animus. At the hearing, the Budget Officer who worked for the Comptroller and with Complainant testified that the Comptroller's actions towards Complainant were never based on her race. Hr'g Tr., Pages 139, 140. The Comptroller, who also testified at the hearing, stated that his decisions regarding Complainant were never based on her race. Hr'g Tr., Page 302. The record further reflects that the Comptroller felt that his interactions with Complainant were negative because Complainant's behavior was negatively impacting the morale of the office. Hr'g Tr., Page 284. Additionally, the record reflects that Complainant has failed to cite to any other employee who had the same interaction as she did with the Comptroller and was treated differently. Further, even if she had, the record reflects that the Agency has put forth a legitimate non-discriminatory reason for its actions which Complainant has neglected to show that the Agency's explanation was merely pretextual. Complainant was unable to establish through record evidence that testimony of Agency officials was conflicting, that the agency explanation was vague, or that the Agency's explanation was uncorroborated. Hr'g Tr., Pages 139, 140, 302.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
We find that there is substantial evidence in the record to support the AJ's finding that Complainant failed to establish discrimination based on reprisal. Although Complainant has established that she engaged in prior EEO activity regarding a former supervisor, and that the Comptroller became aware of this prior EEO activity just upon starting his position in the spring of 2006, Complainant has not demonstrated a nexus between her prior EEO activity and the adverse treatment. Hr'g Tr., Pages 274, 277. Record evidence established that the comments which Complainant cites to support her theory that she was subject to discrimination based on reprisal were made not because of Complainant's prior EEO activity, or with the intention of discouraging her from exercising her EEO rights if necessary in the future, but instead because of the perception that Complainant's demeanor in the office had a negative impact on the general morale and atmosphere of the office. Hr'g Tr., Page 277, 284. Specifically, the AJ found that there was sufficient evidence presented over the course of the hearing to support a finding that Complainant's demeanor within the office and toward the Comptroller personally, and not her prior EEO activity, had the effect of creating negative work environment, and causing the Comptroller to potentially consider her a pot stirrer or a trouble maker. AJ Bench Decision, Page 29. Thus we find that Complainant failed to establish a prima facie case of reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that there is substantial evidence in the record to support the AJ's finding that Complainant failed to prove that she was discriminated against as alleged. Accordingly, we AFFIRM both the AJ's decision finding no discrimination and the Agency's final order adopting the decision.
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
September 9, 2010
Date
2
0120083824
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083824