0120112191
04-12-2012
Debra A. Porter, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Debra A. Porter,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120112191
Hearing No. 460-2010-00155X
Agency No. HS-09-FEMA-00124
DECISION
On March 15, 2011, Complainant filed an appeal from a decision from an
EEOC Administrative Judge (AJ) 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.1 The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Application Specialist at the Agency’s Disaster Recovery Center
facility in Galveston, Texas. On February 27, 2009, Complainant filed
an EEO complaint alleging that the Agency discriminated against her when:
1. On the basis of sex (female) when she was subjected to a hostile work
environment. Specifically, Complainant indicated that in December 2008,
the Disaster Recovery Center Manager (Manager, female) made comments
about dancing on a stripper pole; strapless dresses; mimicked provocative
dances; and said “we are humping to please.” Complainant also
indicated that a co-worker (Co-worker1, male) touched Complainant on
her butt and breathed on her neck.
2. On the basis of reprisal (for alleging sexual harassment), when on
January 3, 2009, Complainant received a negative and invalid performance
appraisal and was released from the Agency.
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 the AJ. Complainant timely requested a hearing
and the AJ held a hearing on December 8, 2010, and issued a bench decision
on January 7, 2011.2
The AJ noted that there were five witnesses including Complainant at
the hearing. The AJ found that Complainant entered duty with the Agency
on October 30, 2008. Following her training, Complainant was assigned
to an Agency unit in Liberty, Texas. She contacted her supervisor
(Supervisor) and requested to be moved for fear of being talked about or
retaliated against for reporting the security guards for playing cribbage.
Complainant was transferred to Galveston, Texas.
Upon her arrival in Galveston, Complainant was assigned to the Manager.
The AJ noted that Complainant asked that she not sit next to a co-worker
(Co-worker2). The AJ found that Complainant has several incidents
with her co-workers including the Manager. For example, the AJ noted
that the Manager overheard Complainant providing incorrect information.
The Manager attempted to correct Complainant but Complainant stated that
she had received training and knew what she was doing. Complainant would
then report such events to the Regional Manager. The AJ noted other
times when Complainant corrected actions of the Team Leader or reporting
a co-worker (Co-worker3) for reading a book in the lobby and another
(Co-worker4) for speaking rudely to an applicant.
As to the harassment claim, the AJ made her findings as to the facts based
on the testimony and the record. The AJ determined that Complainant
overheard Co-worker1 compliment the Manager on a strapless dress she
wore to a party. During the same conversation, the Manager commented
to Co-worker1 that she liked a particular song and imitated the moves
from the song’s video. The Manager told Complainant that “we are
humping to please” when she was discussing the overload of cases in
the district. Complainant believed that such comments were offensive.
Complainant also testified that Co-worker1 touched her butt and breathed
down her neck in December 2008. When Complainant complained about
the incident, the Agency investigated the situation. Co-worker1’s
workstation was changed and he was asked to take an alternative route to
avoid contact with Complainant. The Agency also took steps to ensure
that the employees were aware of the Agency’s harassment policy and
the EEO complaint process.
Based on the findings of fact, the AJ determined that Complainant failed
to establish a prima facie case of sexual harassment. Specifically,
the AJ held that Complainant had not shown that she was subjected to
any unwelcomed conduct. The AJ noted that the overwhelming testimony
that the Agency has oftentimes unsuitable and deplorable conditions
especially during a disaster as was the case at hand. However, the AJ
found that the evidence did not show that the comments by the Manager
or Co-worker1 were sexual in nature or occurred on a frequent basis.
The AJ noted that the events only occurred once.
As to the second event raised in support of Complainant’s claim
of harassment, the AJ determined that Complainant was not credible.
The AJ based her findings of credibility on Complainant’s inconsistent
testimony provided at the hearing and inconsistent statements she provided
to the Agency during their investigation into the matters. The AJ also
noted that Complainant also provided different reasons for her transfers
than what was indicated in the record. As such, the AJ found Complainant
to lack credibility. Based on the evidence gathered and the lack of
credibility of Complainant’s testimony, the AJ found that the alleged
touching of Complainant’s butt, if it actually occurred, was at most
an accidental bump.3 Therefore, the AJ concluded that Complainant failed
to show that the alleged events constituted sexual harassment.
The AJ turned to Complainant’s claim of disparate treatment in
retaliation for her reporting of the alleged sexual harassment. The AJ
noted that Complainant complained about the alleged harassment on December
18, 2008, and subsequently, on January 3, 2009, the Regional Manager
called Complainant into his office to discuss her performance. At the
performance rating, the Regional Manager informed Complainant that she was
rated unsatisfactory in Elements 1 (Knowledge) and 7 (Cooperativeness).
The AJ found that Complainant established a prima facie case of unlawful
retaliation. The AJ then determined that the Agency articulated
legitimate, nondiscriminatory reasons for its action. The AJ held the
testimony and the record evidence clearly showed that Complainant was
argumentative and defensive when it came to management and offers to
give her guidance. The AJ also noted that Complainant had a record
of providing incorrect and conflicting information to applicants.
Complainant would also report other employees to management for coming
in late, returning from lunch late, reading books, and alleged incorrect
information. The AJ found evidence in the record that others did not
like working with Complainant. Therefore, the AJ found that Complainant
was released due to her performance issues and her inability to work
with others. The AJ found that Complainant failed to show that the
Agency’s reasons were pretext for discrimination.
When the Agency failed to issue a final order within forty days of receipt
of the AJ’s decision, the AJ’s decision finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged
became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).
Complainant filed an appeal with the Commission. On appeal, Complainant
asserted that the AJ erred in finding that Complainant failed to establish
her claims of discrimination and harassment. Complainant believed that
the AJ was biased against her and because of her bias, the AJ discredited
Complainant’s evidence and testimony. As such, she believed that the AJ
exerted great distress on Complainant using strong and loud tones toward
Complainant. Complainant asserted that the AJ cut her off throughout
the hearing and would rule against her. As such, Complainant asked that
the Commission reverse the AJ’s decision and find in her favor.
The Agency asked that the Commission affirm the AJ’s findings and
conclusions. The Agency noted that the AJ found that Complainant did
not establish her prima facie cases of discrimination and harassment.
Subsequently, Complainant submitted to the Commission an additional
decision issued by the AJ. Complainant indicated that she did not
receive the complete decision by the AJ. Following requests, Complainant
received another copy of the AJ’s decision dated December 22, 2010,
which she received on June 18, 2011.
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).
We note that Complainant asserted that the AJ’s bias towards the Agency
led to her findings of credibility against Complainant. We find, however,
that the AJ clearly stated that her credibility findings were based on
Complainant’s inconsistent testimony and statements provided to her
and the Agency. The record supports the AJ’s findings of credibility
and therefore, we shall accept the AJ’s determinations.
Harassment
It is well-settled that harassment based on an individual’s sex
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 class; (2) she was subjected to unwelcome conduct related to
her membership in that class; (3) the harassment complained of was based
on her sex; (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 (March 8, 1994).
Complainant alleged that she was subjected to a hostile work environment
based on two events: the conversation between the Manager and Co-worker1
and Co-worker1 allegedly touching Complainant’s butt and breathing
down her neck. The conversation of the Manager and Co-worker1 occurred
only once and involved a conversation between the two of them regarding
a party and musical preferences. As to the second event, the AJ, based
on her credibility determinations, found that Complainant failed to show
that the alleged event occurred as suggested by Complainant. Based on the
totality of the events and the AJ’s findings of fact and credibility, we
find that the AJ correctly held that Complainant failed to show that she
was subjected to events which were so severe or pervasive as to create a
hostile work environment. Accordingly, we affirm the AJ’s finding that
Complainant failed to show that she was subjected to sexual harassment.
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, the Agency provided legitimate,
nondiscriminatory reasons for Complainant’s performance appraisal and
her release from the Agency. The record supported the AJ’s determination
that Complainant was very argumentative and defensive when it came to
management’s offer of guidance. Further, the AJ noted that Complainant
provided incorrect and conflicting information to applicants and was
concerned with reporting other employees for their failings. As such,
Complainant was released because of her performance and inability to
work with others. Complainant failed to show that the Agency’s reasons
were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the AJ’s
findings 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
April 12, 2012
__________________
Date
1 When the agency failed to issue a final order within 40 days of its
receipt of the AJ's decision, by operation of law the AJ's decision
became the final agency action. See 29 C.F.R. § 1614.109(i).
2 The record shows that the AJ convened a hearing to issue her bench
decision on December 22, 2010 which was subsequently issues on January
7, 2011.
3 The AJ noted that Complainant provided three different versions of
the alleged incident involving Complainant’s butt ranging from an
incidental bump to a touching of her butt with his finger.
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0120112191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112191