Appeal No. 0120132103
09-26-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120132103
Agency No. HS10FEMA00174
DECISION
On April 18, 2013, Complainant filed an appeal from the Agency's March 21, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established by the preponderance of the evidence that she was harassed and discriminated against based on her race and prior EEO activity as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-0301-13, in the Preparedness Grants Division, Grants Program Directorate, located in Washington, DC. On July 22, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO when:
1. On a continual basis, her first line supervisor (S1) unfairly scrutinized her time and attendance;
2. On April 16, 2010, S1 unfairly gave her two Less than Expected (LTE) ratings on her 2nd quarter performance review, and on several occasions S1 stated that he did not feel she should be a GS-13 because she was working below the GS-13 performance level;
3. On April 16, 2010, S1 unfairly used information from her self-assessment to evaluate her performance;
4. On April 19, 2010, after she requested a transfer to another Directorate, her second line supervisor (S2) advised her that the Agency would not assist her with a transfer;
5. On April 22, 2010, a USAjob.gov job announcement from a different agency was placed anonymously in her mailbox;
6. On May 3, 2010, after she informed management that she would be out of the office from May 5 through May 11, 2010, S2 walked into her office, raised his voice, requested to know her work schedule for the first week in May, and stated he expected all of her reviews to be completed prior to her departure;
7. On July 20, 2010, S1 revised her 3rd quarter performance review, but did not remove the comments in the review. When she informed S1 that comments were still there, S1 began raising his voice, stating that he did not have time to make the change;
8. On February 4, 2011, during her quarterly review, S1 verbally attacked her and tried to coerce her into signing her review without reading it; and
9. On May 18, 2011, due to a re-organization, several employees were reassigned to a new supervisor, while she was not reassigned and remained under the direct supervision of S1.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions regarding the discrete acts of disparate treatment that Complainant alleged. Further, the Agency found that Complainant failed to demonstrate that the Agency's proffered reasons were not worthy of credence.
With regard to claim 2, S1 testified that the quality of Complainant's writing was not at the GS 13 level and he received several complaints that people had a hard time understanding her communications. S1 stated that he spoke to Complainant, reviewed her writings, showed her where she needed to improve, and sent her to numerous training sessions to increase her communication skills. S2 testified that S1's reasons for the LTE ratings were "appropriate" and corroborated S1's statements regarding the quality of Complainant's work. S1denied that he told Complainant that she did not deserve to be a GS 13. Instead, he maintained that he told her that her work product was "not at the GS-13 level of performance."
With regard to claim 3, S1 denied that he unfairly used Complainant's self-assessment in her evaluation. He noted that Complainant provided inaccurate information in the self-assessment because she failed to follow the instructions on the form; did not input her goals and objectives; physically changed the form; and failed to identify her strengths and weaknesses.
The Agency found that Complainant failed to offer any evidence to show that the Agency's proffered reasons were a pretext for discrimination.
With regard to claim 4, S2 testified that he told Complainant that if she was interested in another detail or in a transfer, she would need to find that opportunity on her own. S2 stated that he found an opportunity for Complainant, but she declined it. S2 further stated that he told
Complainant that he was happy to look at any detail or transfer opportunity Complainant found, and, if appropriate, would approve it.
The Agency found that Complainant failed to establish that management refused to respond to her requests for a transfer based on her protected status. Further, it found that Complainant stated that S2 suggested that she transfer to the Grants Management Division, but that Complainant refused that position. Complainant also stated that S2 acknowledged her request for a transfer and conducted extensive search efforts on her behalf.
With regard to claim 7, the Agency found that S1 stated that the comments needed to remain in the Performance Review to support the ratings. S1 further stated that he reviewed theses issues with Complainant and tried to help her to realize the areas she was weak and where she needed to improve. S1 denied that he raised his voice to Complainant or told her that he did not have time to review the comments.
The Agency found that Complainant failed to offer any evidence to show that the Agency was motivated by discriminatory animus regarding this claim.
With regard to claim 9, an Acting S2 (AS2) testified that he changed the Section Chiefs assignments to be more regionally focused, but that the Program Analysts, including Complainant, stayed with the same state assignments. Therefore, Complainant remained with S1 since S1 had responsibility for Complainant's states and region.
The Agency found that Complainant failed to prove that management's legitimate, nondiscriminatory reason for leaving Complainant under S1's supervision was a pretext for discrimination based on Complainant's protected bases.
With regard to the remaining claims, 1, 5, 6 and 8, Complainant's hostile work environment claim, the Agency found that Complainant failed to establish that the Agency's actions were motivated by her protected classes. Further, the Agency found that even if the incidents occurred, as alleged, Complainant failed to provide evidence to show that the incidents were sufficiently severe or pervasive to constitute harassing behavior.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency's decision to the Commission. Complainant did not submit a brief or any statements on appeal. The Agency requests that the Commission affirm its Final Decision finding no discrimination or harassment.
ANALYSIS AND FINDINGS
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 Chapter 9, � VI.A. (November 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").
With regard to Complainant's allegations of disparate treatment, we note that to prevail in a disparate treatment claim such as this, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. 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). 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as detailed above.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. We find that Complainant has failed to do so. Nothing in the record shows that the responsible management officials were motivated by discriminatory animus or that their testimony lacked credence. Further, we note that Complainant failed to proffer any evidence to show that the management officials were motivated by discriminatory reasons. As such, we find that Complainant failed to establish that he was discriminated against as alleged.
Turning to Complainant's claim of harassment, we note that in order to establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
We find that even assuming the all incidents occurred as alleged, nothing in the record demonstrates that the incidents were sufficient severe or pervasive to render Complainant's work environment hostile. On the contrary, for the most part, we find these matters to be common workplace occurrences. Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass Complainant on the basis of any of her protected classes, such common workplace occurrences are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. Complainant has failed to show that the Agency's actions were based on animus towards her protected classes. As such, we find that Complainant failed to establish that she was harassed as alleged.
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 FAD finding no discrimination or harassment.
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
___9/26/14_______________
Date
2
0120132103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132103