0120142592
07-12-2016
Belkis D.,1 Complainant, v. Wendy Spencer, Chief Executive Officer, Corporation for National and Community Service, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belkis D.,1
Complainant,
v.
Wendy Spencer,
Chief Executive Officer,
Corporation for National and Community Service,
Agency.
Appeal No. 0120142592
Agency No. 04-13-006
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 8, 2014 final decision 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.
BACKGROUND
On August 27, 2012, Complainant was hired as a Fleet Manager at the Agency's NY-3, Operations Division, Southern Region Office, National Civilian Community Corps (NCCC), Corporation for National Community Service in Vicksburg, Mississippi, subject to a 2-year probationary period.
On April 17, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when:
A. she was subjected to the following incidents of hostile work environment when:
1. on or about September 2012, she was instructed by her first-line supervisor, the Deputy Region Director for Operations, to falsify the mileage report in the GSA Drive-Thru system for Fleet Managers, because he was unable to find keys to several vehicles to report the odometer readings;
2. on or about August 27, 2012, the supervisor informed her of his negative opinions of her co-workers;
3. on several occasions from August 2012 to present, the supervisor did the following:
a. spoke to her in an inappropriate manner which she believes caused her to develop hypertension/high blood pressure;
b. discussed her timesheets with other employees on the team;
c. during an Inspector General (IG) investigation, made the allegations that she had a personal relationship with the former Region Director; and
d. informed new employees not to associate with her, and told Corps members and team leaders not to come to her for anything because she was mean, and she ran the fleet manager's office like the military; and
B. the Agency subjected her to disparate treatment when on August 23, 2013, she was terminated from her position at the NCCC Southern Region Campus during her probationary period.2
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on April 8, 2014, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not establish a prima facie case of race and sex discrimination. The Agency found, however, that Complainant established a prima facie case of reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. Complainant submits no argument on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant's supervisor stated that in regard to claims A.1. - A.3., he did not subject Complainant to a hostile work environment. The supervisor stated "it was obvious from the first time [Complainant] arrived that she was going to do what she wanted, and not listen to anyone. From the first day, she refused to listen to any debriefs of how to do her job."
Regarding claim A.1., the supervisor stated that he never asked anyone, including Complainant, to falsify the mileage report. Specifically, the supervisor stated "I did not ask [Complainant] to falsify mileage, and I would have done the mileage myself if she could not have since I had done for the last three years."
The former Acting Region Director stated that during the relevant period he was Complainant's second-line supervisor (Supervisor 2). Supervisor 2 stated that when Complainant told him that the supervisor told her to falsify the mileage report, he checked with the supervisor and the supervisor told him that he only asked Complainant to check the vehicles. Specifically, Supervisor 2 stated "my understanding is that [supervisor] was not asking [Complainant] to falsify information. There was a similar issue with the accident reports. She was asked to collect information from team members about accidents, and then compile the information."
Regarding claim A.2., the supervisor stated that during the relevant period, he did not spend four hours with her on her first day of work. Specifically, the supervisor stated "I had rare interactions with [Complainant] during her first week."
Regarding claim A.3., the supervisor denied speaking to Complainant in an inappropriate manner which caused her to develop hypertension and high blood pressure. The supervisor stated that Complainant "has announced her high blood pressure to everyone and I have made a point of having minimal contact with her other than on a professional level. She has not told me that my behavior was causing her to have high blood pressure."
Further, the supervisor stated that he does not recall discussing Complainant's timesheets with other employees. The supervisor stated "I do not recall making such a statement. [Complainant] had a pattern of not doing her timesheets without me telling her to complete her timesheets.
The supervisor denied Complainant's allegation that during an IG investigation he made a statement that she had a personal relationship with the former Region Director. The supervisor stated that his interview was a brief one and "I was not asked the question by the IG and I never made the statement."
The supervisor stated that he never told new employees not to associate with Complainant and told Corp members and team leaders not to come to her for anything because she was mean and ran the fleet manager's office like the military. The supervisor stated "I have had complaints from team leaders and Corps members that [Complainant] was mean. She describes the Corps members as stupid and crazy which is inappropriate...in her conversations with Corps members, she speaks in a demeaning tone." Furthermore, the supervisor stated that Complainant "has informed me that I should not talk to Corps members. I think she has told several Corps members not to come see myself or [Support Services Specialist]; only her."
The Region Director of the NCCC Southern Region Campus (Director) stated that during the relevant period, he talked to Complainant about work and "some of the frustrations she has in working with [supervisor]. She states that [supervisor] second guesses her in the work she does and will recheck vans...I do not recall Complainant ever indicating that she believed [supervisor's] actions were harassment; she indicated it was more frustration."
Regarding claim B, the Director was the deciding official to terminate Complainant during her probationary period. The Director stated that Complainant was terminated based on performance issues. The Director stated the following reasons for Complainant's termination were "a lack of vehicle maintenance which is one of the key responsibilities of the Complainant, and which in one case, resulted in a blowout of a tire. There was a review and documentation from a service station that determined the vehicle had three tires that had dry rot....a review was conducted on vehicles on the campus, and it was determined that there were three other vehicles on campus that were found to have dry rot, indicating a lack of required maintenance."
The Director stated that during the relevant period, 23 set of keys and fuel cards were discovered on Complainant's desk when she went on leave. The Director also stated that during a de-briefing of team leaders in June 2013, the team leaders indicated that Complainant spoke to them "in a demeaning, sharp and rude tone, which made them feel 'stupid' and they felt uncomfortable approaching Complainant. It was also reported to me that there were discussions that Complainant had with Team Leaders. In these conversations, she shared her personal opinion about her staff peers...had made disparaging remarks about ethnic groups, revealed personal information about team leaders in a public setting, and would set a timer on her watch to go off when it was time for her to go home. She would then cut off conversations when the alarm sounded. I thought this conduct was unprofessional and compromised the effectiveness of the vehicle maintenance program, as well as the safety of our members."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases -- in this case, race and sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her race and sex.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of 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
July 12, 2016
__________________
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 The record reflects that claim B was later amended to the instant formal complaint.
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