0120140696
05-23-2014
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120140696
Hearing No. 430-2013-00189X
Agency No. HS-HQ-00844-2011
DECISION
On November 26, 2013, Complainant filed an appeal from the Agency's October 23, 2013, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that the Agency subjected her to a hostile work environment in reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Security Specialist (Law Enforcement Safety Officer), Federal Protective Service (FPS), National Protections and Programs Directorate, at the Agency's facility in Norfolk, Virginia. Complainant engaged in EEO activity when she filed complaints on October 5, 2009, and December 29, 2010.
On June 4, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), age (53), and reprisal for prior EEO activity when, on January 10, 2011, the Federal Protective Service Acting District Commander interviewed and questioned her for five continuous hours with no break for restroom, food, or drink, and her request to have her union representative physically present was denied. By letter dated June 28, 2011, the Agency accepted Complainant's reprisal claim for investigation but dismissed the claims of sex and age discrimination for failure to state a claim. The Agency stated that the dismissed claims constituted a collateral attack on an Office of Professional Responsibility proceeding.
The investigation disclosed that, on July 15, 2010, Complainant executed an officer safety/traffic stop while performing her job duties. The Agency states that the individual involved in the traffic stop complained to a Member of Congress and that the Agency subsequently received a Congressional inquiry regarding the traffic stop. The Agency's Office of Professional Responsibility (OPR) then opened an administrative inquiry into the matter.
In an October 20, 2010, e-mail, Complainant's first-level supervisor (S1) notified Complainant that S1 "need[ed] to set up an interview for [Complainant] with an investigator" for October 27, 2010. The e-mail noted that Complainant could have a union representative present during the interview if she wished. The interview was subsequently rescheduled. On November 18, 2010, the Acting District Commander (DC) provided Complainant with scanned copies of "advisements and warnings," including a document noting that Complainant would be questioned about her knowledge of alleged abuse of law enforcement authority and powers. On January 5, 2011, Complainant sent DC a list of 22 questions concerning the investigation and interview. DC replied that the answers to most of her questions were available in FPS Directive 15.1.4.1.
On January 10, 2011, DC interviewed Complainant from approximately 9:00 a.m. to 2:00 p.m. The interview took place in the office that Complainant shared with two co-workers. Complainant's union representative attended the interview via telephone.
In her affidavit, Complainant asserted that DC typed his questions into a laptop computer and then instructed her to type her answers while he "hovered" over her. She also asserted that DC "responded to [her] answers with heavy sighs of disapproval" and gesturing and pacing, "attempt[ed] to rush [her] along," denied her request to print out the questions so she could answer them with a pencil and paper, prohibited her officemates from entering the office during the interview, and "displayed anger and frustration." Complainant acknowledged that she did not request any breaks during the interview. She stated that she was not allowed to have her husband or her attorney present or to have her union representative physically present during the interview. According to Complainant, DC declined to conduct the interview in Washington, D.C., on dates that her union representative could be physically present and instead insisted on conducting the interview in Norfolk, Virginia. Complainant alleged that the Agency initiated the investigation, which she described as "resulting from a yet unconfirmed Congressional investigation," in retaliation for her prior EEO activity.
Complainant's union representative told the EEO Investigator that Complainant asked him to be present during the interview and that he determined that he could handle the interview over the telephone. He stated, "I was not denied the right to attend." The union representative also stated that he ended his participation in the interview when questioning was finished and an affidavit was being prepared, that he advised Complainant to call him if her written answers changed from the oral answers, and that Complainant subsequently told him that it took "considerably longer than anticipated" to prepare the affidavit. Complainant did not call the union representative during the preparation of the affidavit.
One of Complainant's office mates (CW1) stated that Complainant asked him to remain in the office during the interview but DC would not allow anyone else to be in the room. He asserted that, when he went into the office "a couple of times" to retrieve files or to check the computer, DC "appeared angry and demanded that [CW1] not disturb them." Although he tried not to listen to the interview, CW1 was present for a few questions and thought that DC's "tone was upset and accusatory." CW1 alleged that the Agency improperly classified an "officer safety stop" as a "traffic stop."
DC told the EEO Investigator that he was not aware of Complainant's prior EEO activity and the he first learned of her EEO activity in May 2011. He stated that he was assigned to conduct an administrative inquiry into a complaint involving Complainant, that he interviewed all parties involved in the complaint, and that he interviewed Complainant because she was the subject of the inquiry. According to DC, the interview took place in a professional setting, Complainant's union representative participated via telephone, and DC stepped away when Complainant asked to speak with her representative privately. He stated that Complainant did not ask for a break during the interview and that he did not offer one because he presumed she would request one if she needed it. He denied that Complainant asked to use a pencil and paper in lieu of the laptop computer. DC also denied that he "hovered" over Complainant, paced the floor, or emitted heavy sighs of disapproval. He stated that there were times when Complainant typed an answer that did not respond to the question, that he would point this out to Complainant, and that her representative told her to answer the question "on several occasions." In addition, Dc stated that, because of the nature of the administrative inquiry, Complainant was not entitled to have her attorney present during the interview.
Complainant's first-level supervisor (S1) told the EEO Investigator that the OPR investigation was based on a complaint filed by the subject of the July 2010 traffic stop. She did not know who requested the investigation. Complainant's second-level supervisor (S2) told the EEO Investigator that a Member of Congress asked the Agency to investigate the July 2010 traffic stop after the subject of the stop complained to the Member of Congress. S1 and S2 stated that they were aware that Complainant had engaged in prior EEO activity.
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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that Complainant failed to prove that the Agency subjected her to a hostile work environment based on sex, age, or reprisal. The Agency concluded that there was no evidence that discriminatory or retaliatory animus motivated the incidents at issue. The Agency further concluded that the incidents were not sufficiently severe or pervasive to constitute harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the Agency subjected her to discrimination and a hostile work environment based on reprisal. Noting that her prior complaints were pending at the time of the interview, Complainant argues that the temporal proximity between her prior complaints and the Agency's actions raises a strong inference of reprisal. Complainant asserts that she did not question the Agency's wish to interview her but, rather, objected to being subjected to "abnormal" interrogation techniques. She further asserts that the conduct of the interview "was so abnormal as to raise questions and draw [an] inference of retaliation." Complainant states that, based on the interview, the Agency proposed to remove her from her position for failure to follow written policy during the traffic stop and lack of candor during the interview. Complainant asserts that the alleged inconsistencies cited in the notice of proposed removal resulted from DC's withholding of rights and courtesies during the interview. She argues that "[t]he only purpose of such action was to produce an atmosphere in which inconsistencies could be developed, and any witness to the misconduct of the Agency in its procedures, would remain unwitnessed and uncontradicted." Complainant asserts that there was no reason for the Agency's treatment of her other than "to produce . . . the proposed removal to use as a bargaining chip" and that the Agency sought "to discredit her for the purposes of adversely affecting" her pending EEO complaints. She argues that the claim in this case is "one part of a concerted series of discriminatory and harassing actions" and that "any claim of 'legitimate business reason' lacks legitimacy and smacks of pretext."
In response, the Agency argues that Complainant has not shown that the incidents at issue in this case were sufficiently severe or pervasive to create a hostile work environment. The Agency also argues that there is no evidence that discriminatory or retaliatory animus motivated the incidents. The Agency notes that the proposed removal was not an accepted issue in this case, states that DC had no knowledge of Complainant's prior EEO activity, and asserts that DC played no role in the proposed removal. In addition, noting that the case involves a hostile-work-environment claim, the Agency argues that Complainant's arguments regarding disparate treatment and pretext are irrelevant. The Agency submits a copy of a letter, from a United States Senator, forwarding correspondence from the subject of the July 15, 2010, officer safety/traffic stop.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
As an initial matter, we note that, although the Agency dismissed Complainant's allegations of discrimination based on sex and age, the final agency decision nonetheless found that the Agency did not discriminate against Complainant on those bases. On appeal, Complainant does not challenge the dismissal and does not argue that the Agency's actions constituted sex or age discrimination. Accordingly, the Commission exercises its discretion and declines to address the bases of sex and age. See EEO MD-110 at Chap. 9, � VI.A. ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8.II.D at 8-11-16 (May 20, 1998) (EEOC Compliance Manual on Retaliation).
In this case, Complainant has not shown that retaliatory animus motivated the Agency's actions. She has offered no evidence to refute DC's statement that he was not aware of her prior EEO activity at the time of the January 10, 2011, interview. Further, there is no evidence that S1 or S2, who were aware of the prior protected activity, influenced the conduct of the interview. Similarly, nothing in the record establishes that the union representative's telephonic rather than physical presence resulted from retaliatory animus.
To the extent that Complainant is arguing that the issuance of a notice of proposed removal compels a finding of discrimination in this case, her argument fails. As the Agency notes, the proposed removal is not the subject of this complaint. The Report of Investigation contains no information about the proposed removal. Complainant's speculation that the Agency conducted the interview in a manner designed to produce a removal action that could be used as a "bargaining chip" is not supported by the record before us.
Because the evidence of record does not establish that the Agency took the actions at issue in this complaint for retaliatory reasons, we find that Complainant has failed to demonstrate that the Agency subjected her to discrimination or a hostile work environment based on reprisal for 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 decision and its finding of no discrimination.
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
May 23, 2014
Date
2
0120140696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140696