Celeste P.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180120172411 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celeste P.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 0120172411 Hearing No. 570-2015-00958X Agency No. YU-12-0031 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2017 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a contract administrator, 1102, GS-11 at the Agency’s Belleview Parkway facility in Manassas, Virginia. On July 8, 2011, Complainant received a Letter of Warning and Instruction (LOWI) concerning her performance and conduct, which according to the applicable union agreement, was to remain in Complainant’s file for 12 months from its issuance. The LOWI noted Complainant’s reports were late in March, April, May, and June. 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. 0120172411 2 On November 10, 2011, a member of the Agency’s management documented that, of the 596 contracts administered by Complainant’s team, 226 were for one of Complainant’s contractors. On November 30, 2011, Complainant’s supervisor (SVR) placed her on a performance improvement plan (PIP). Complainant’s performance improved, she “passed,” and received a “fully successful” rating for 2012. Prior to and during the PIP period, Complainant submitted a series of leave requests; SVR did not approve Complainant’s request on February 15, 2012 for leave on February 17, 2012. On February 17, 2012, Complainant took leave without approval. On or about February 24, 2012, SVR issued Complainant a Letter of Warning for unauthorized leave. Complainant initially contacted an EEO counselor on February 9, 2012. The EEO counselor’s report indicates Complainant initially alleged she had been subjected to a hostile work environment and discrimination based on race (Black/African-American) relating to her evaluation/appraisal. She alleged that between August 2011 and March 2011, SVR subjected her to a hostile work environment when (1) on or about April 2012, he denied Complainant training; (2) on February 22, 2012, he issued Complainant a Letter of Discipline; (3) on February 17, 2012, he disapproved Complainant’s leave request; and (4) on November 30, 2011, he issued Complainant a PIP. She alleged that, between July 22, 2011, a contracts director (CD) failed to act on on the alleged hostile work environment incidents after Complainant informed and instead she laughed and apologized. She alleged that, between May and July 2011, her former supervisor (FSV) subjected her to a hostile work environment when (1) on July 14, 2011, he gave her a failing performance appraisal; (2) on June 22, 2011, he issued her a LOWI and yelled at her at least three (3) times in one day for going to a legal office, resulting in Complainant visiting the emergency room; and (3) between May 9 to 19, 2011 and June 24 and 27, 2011, he disapproved Complainant’s leave requests. A letter from Complainant to the Agency, dated March 9, 2012, indicates Complainant was filing her EEO complaint due to discrimination, harassment, a hostile work environment, and bullying. She generally alleged that from March 2009 until February 2012, several supervisors subjected her to various and multiple acts of harassment and intimidation including unfair treatment and workload distribution, belittling, pressure and bullying relating to tasks that were not given adequate time for completion, yelling and screaming, constant time monitoring, receiving an unfair evaluation without a review of her individual performance plan, and denial of leave. In April 2012, the Agency provided training in cost accounting standards. Complainant requested to attend the training. SVR denied her request but Complainant attended a portion of the training without approval. Six (6) other employees (4 Caucasian, 1 African-American, and 1 non-white) on Complainant’s team did not attend the training. On April 5, 2012, Complainant submitted a formal EEO complaint, attaching the March 9, 2012 letter discussed above. 0120172411 3 The Agency issued a partial acceptance letter, dated May 16, 2012, indicating Complainant alleged discrimination on the basis of race (Black/African-American) when: a. between August 2011 and March 2012, SVR (Caucasian) subjected Complainant to a hostile work environment when: (1) on or about April 2012, SVR denied Complainant training, (2) on February 22, 2017, SVR issued Complainant a Letter of Discipline, (3) on February 17, 2017, SVR disapproved Complainant’s leave request, and (4) on November 30, 2011, SVR issued Complainant a PIP; b. on July 22, 2011, CD (Hispanic) failed to take action on the alleged hostile work environment incidents after being informed and, in return, just laughed and apologized; and c. between May and July 2011, FSV subjected Complainant to a hostile work environment when (1) on July 14, 2011, FSV gave Complainant a failing performance appraisal, (2) on June 22, 2011, FSV issued Complainant a LOWI and yelled at her at least three (3) times in one (1) day for going to a legal office, resulting in Complainant visiting the emergency room. The partial acceptance letter indicates that the Agency accepted only the allegations included under claim a i.e., those allegations pertaining to SVR. The Agency dismissed claims b and c, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. It further indicates that claim b was dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Those claim c was also dismissed, pursuant to 29 C.F.R. § 1614.107(a)(5), as moot because FSV is no longer Complainant’s supervisor or in her chain of command and it is, therefore, no reasonable expectation that the alleged adverse actions will recur. 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 March 20, 2016, motion for a decision without a hearing and issued a decision without a hearing on April 27, 2017. 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 asserts that there are genuinely disputed facts. She asserts that there is evidence suggesting she was placed on a PIP unfairly since the terms were not consistent with her individual performance plan and a reasonable person could conclude that the reasons provided for placing her on the PIP were a pretext. 0120172411 4 She further asserts that a reasonable person could conclude that the Agency’s reason for denying her leave was a pretext to mask discrimination. There is a genuine dispute as to whether Complainant’s not having her assignment submitted was the real reason SVR denied her leave request. Additionally, if Complainant had submitted it, SVR’s statement that he denied leave to others who owed assignments was not evidence of similar treatment towards those outside of Complainant’s protected class. In response, the Agency asserts that Complainant cannot establish the Agency subjected her to a hostile work environment or harassment on the basis of race. It is undisputed that there is no evidence of record of any racial slurs or other racially-based conduct being directed at Complainant, let alone any Agency behavior that rises to the level of severe or pervasive harassment altering the conditions of Complainant’s employment. Complainant also has not carried her burden of persuasion that the Agency’s legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. It is undisputed that in the months preceding the PIP, Complainant had difficulty meeting deadlines and performing her other duties in a timely and adequate manner; there were no similarly situated employees with the same level of performance problems and, while there were other African-American employees on Complainant’s team, neither was placed on a PIP or issued a LOWI. With respect to the denial of leave, several other employees outside of the protected class were also denied leave due to workload requirements. Complainant did not communicate that she had completed her assignment when requesting leave and she took leave without approval. ANALYSIS AND FINDINGS 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. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. 0120172411 5 We note that, during the EEO investigation, Complainant declined to give sworn testimony in support of her claim, in spite of the EEO investigator’s multiple requests. That said, Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination based on race, her claim ultimately fails, as we find that the Agency articulated legitimate, non- discriminatory reasons for its actions. SVR indicated that Complainant had multiple performance issues that required the issuance of the PIP, including Complainant’s untimely completion of tasks and responding to customer inquiries. With respect to the denial of leave on February 17, 2012, SVR indicated that the denial was so that Complainant could complete a work task. As mentioned, Complainant took leave without approval. SVR indicated that the Letter of Warning was needed because Complainant had a history of taking leave and requesting permission afterwards. With respect to the training, SVR indicated he could only send one contract administrator to the training and he did not select Complainant because she did not work on any cost accounting standard issues. Complainant has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. With respect to Complainant’s allegations that the Agency subjected her to a hostile work environment, we find that she has failed to establish a prima facie case. Even if her allegations relating to yelling and screaming, time monitoring, etc. were true, we find they are insufficiently severe or pervasive as to have altered the conditions of her employment. 0120172411 6 See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16, 1998); and Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). The allegations, assuming they are true, were isolated incidents that are insufficient to support a prima facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120172411 7 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 October 31, 2018 Date Copy with citationCopy as parenthetical citation