0120112552
09-23-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120112552
Hearing No. 570-2008-00097X
Agency No. 06-DI-04
DECISION
On April 18, 2011, Complainant filed an appeal from the Agency's March 15, 2011, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Staff Officer at the Agency's facility in Washington, D.C..
On June 23, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior EEO activity when:
1. Complainant was given "unfounded criticism" in her March 21, 2006 performance appraisal.
2. The Agency failed to promote her to the grade level of GG-0132-15 since her assignment as the Acting Chief, Directorate for Analysis-Administrative Services (DI-AS), on or about April 26, 2005
3. She was issued her a performance appraisal on May 22, 2008, for the period of March 2007 to April 5, 2008 which reduced, without just cause, both her overall score and her attribute scores by a significant amount from the prior appraisal issued in March 2008 by her prior supervisor; and
4. She was subjected her to a hostile work environment. In support of her claim of harassment, Complainant alleged that the following events occurred:
a. Management removed staff and refused to allow the Complainant to hire additional staff.
b. Management falsely accused her of creating a hostile work environment or a subordinate employee.
c. The Capital Equipment Replacement Program (CERP) was taken away from her and assigned to a white male to perform,
d. Organizational changes were made to her office.
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 and the AJ held a hearing on June 21-23, 2010, and July 7, 2010. Following the hearing, the AJ issued a decision on March 1, 2011.
The AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions. As for the appraisals, the AJ determined that the Supervisor provided testimony at the hearing for Complainant's ratings of March 21, 2006 and May 22, 2008. The AJ then held that Complainant failed to prove that a rating of "superior performance" with "outstanding" potential is a negative evaluation or that her scores and comments were "unfounded criticism." As to claim (2), Complainant asserted that she should have been promoted to the GS-15 level. The AJ determined that management felt that Complainant's position did not justify a promotion to the GS-15 level. The AJ indicated that Complainant could have requested a desk audit to have the position reviewed. However, Complainant failed to make such a request. Based on the evidence and the testimony provided at the hearing, the AJ concluded that Complainant failed to show she was subjected to discrimination with respect to her assignment. Finally, the AJ turned to Complainant's claim of harassment. The AJ determined that management did not subject Complainant to a hostile work environment. Specifically, the AJ held that the events listed by Complainant were not objectively hostile or abusive. The AJ determined that the events complained of were normal parts of the course of business. Therefore, based on the investigation, the hearing testimony and the record as a whole, the AJ concluded that Complainant failed to establish that she was subjected to discrimination or harassment based on her race and/or prior EEO activity.
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. This appeal followed without specific comment.
By letter dated May 12, 2011, OFO notified the Agency of the filing and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. The May 12, 2011 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. We note that the Agency filed a brief in response to the appeal on June 9, 2011. The Agency argued that Complainant failed to show that the AJ erred in finding no discrimination. However, OFO did not receive the complete complaint file. As such, OFO issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed (Notice).
The Agency provided a copy of the complete complaint record including the hearing record. The Agency responded to the Notice providing evidence that it had previously complied with OFO's request for the entire complaint file. Based on the Agency's submission, we find that the record is complete and the appeal can be addressed.
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.
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
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ properly determined that the Agency provided legitimate, non-discriminatory reasons for the performance appraisals in March 2006 and March 2008 and the decision not to promote Complainant to the GS-15 level. Further, Complainant failed to show that the Agency's reasons were pretext for discrimination. As such, we find no basis to disturb the AJ's conclusion that Complainant had not shown that she was subjected to discrimination as alleged in claims (1) - (3).
Harassment
It is well-settled that harassment based on an individual's race and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) s/he was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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 Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Upon review of the record, we determine that the AJ properly concluded Complainant failed to show that the alleged actions had the purpose or effect of unreasonably interfering with her work performance. We conclude that the substantial evidence of the record supports the AJ's determination that Complainant failed to show that she was subjected to harassment based on her race and/or prior EEO activity.
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 adopting the AJ's finding of no discrimination following a hearing.
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 23, 2014
__________________
Date
2
0120112552
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112552