Estelle H.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Mar 12, 2020

2019003166 (E.E.O.C. Mar. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estelle H.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 2019003166 Hearing No. 550-2018-00001X Agency No. DOI-FWS-17-0227 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated February 26, 2019, finding no discrimination regarding her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Communication Coordinator/Public Affairs Specialist, GS-1035-13, at the Agency’s National Interagency Fire Center in Boise, Idaho. 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. 2019003166 2 On April 7, 2017, Complainant filed her complaint alleging that she was subjected to discrimination and harassment based on sex (female), age (over 40), disability, and in reprisal for prior EEO activity when: (1) Beginning in 2006 to present, current, and previous supervisors have excluded her from official matters, restricted her from performing official duties, and made derogatory references regarding her mental/emotional state/history. (2) During the month of May 2016, the Branch Chief admonished her in front of another staff member. (3) During the month of November 2016, the Deputy Branch Chief, Fire Management, issued her a Level 3 rating. (4) On or about December 8, 2016, the Division Chief, Natural Resources and Conservation Planning, Falls Church, Virginia, did not respond to her allegations of discriminatory treatment. (5) On January 3, 2017, the Deputy Branch Chief, Fire Management, issued her a Notice of Proposed Suspension. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On July 16, 2018, the Agency filed a Motion for Summary Judgment and Complainant filed a response to the Agency’s motion opposing a decision without a hearing on August 20, 2018. On February 7, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals. ANALYSIS AND FINDINGS 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. 2019003166 3 In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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 he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his statutorily protected class; (4) the harassment affected a term or condition of 2019003166 4 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. 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). In the instant case, the AJ, assuming arguendo that Complainant had established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its action. Further, the AJ determined Complainant did not establish discriminatory animus or retaliatory intent. Complainant indicated that she had a mood disorder, also referred to as bipolar disorder and manic depression. She stated that she took medication and was able to work full time. In January/February 2012, she suffered a temporary disability when she fell and sustained a head injury at work. She provided medical documentation of her temporary disability to her then acting supervisor who subsequently became Complainant’s second level supervisor (S2), the Branch Chief. S2 stated that Complainant fell and experienced a temporary traumatic head injury in January/February 2012. S2 noted that when Complainant came back to work, she was accommodated to work at her own pace per her doctor’s orders and work from home at her discretion. Complainant requested and was provided with an office with windows. Complainant does not dispute the foregoing. We note that in the present complaint, Complainant does not claim that she was denied accommodations for her disabilities or that she was forced to work in violation of her medical restrictions. Regarding her claim surrounding office space in the new administrative building in the summer of 2016, Complainant’s immediate supervisor (S1), the Deputy Brach Chief, indicated that the new building housed several federal agencies, and the office space was redesigned ergonomically to try and accommodate the different staff members by job functions. In that building, some of the staff had cubicles and some had offices. S1 stated that Complainant informed him that if she moved into this new building, she would require a workstation with a window to supply natural light to alleviate her depression. She was given a choice between a cubicle with a window and an office with no window. She decided to stay in the old building where she had a cubicle with a window. S1 indicated that Complainant never told him she was not happy with this arrangement until the instant complaint. Complainant claimed that a younger male was allowed to move into an office with a window. Upon review, we find that that individual was not a similarly situated employee since he was assigned to the IT (Information Technology) supervisory position and occupied the IT office whereas Complainant was a Communication Coordinator/Public Affairs Specialist. 2019003166 5 Complainant noted that another coworker, over 40, also remained in the old building. The coworker stated that he preferred to remain in the old building because he had an office with a door. Regarding claim (1), S2 stated that since 2009, the Agency has been under severe budget restrictions and management was forced to redistribute and change work duties and job assignments and every Branch employee was affected by this. S2 indicated that many Branch employees’ duties were eliminated or changed and job descriptions, including supervisors, were reclassified to meet the Agency’s goals. S2 stated that Complainant’s duties were also changed and realigned with her colleagues in Headquarters to meet the Agency’s goals. S2 denied Complainant was excluded from official matters as alleged. Specifically, S2 stated that Complainant was involved in official meetings and calls and was approved to participate in an Accreditation in Public Relations Program, multiple career development details, field trips, and assignments that she undertook annually as a Public Information Officer (PIO) from 2013 through 2017. Complainant claimed that during her Berry Fire assignment, described in claim (5) below, in August 2016, S2 and the Deputy Brach Chief, her immediate supervisor (S1), made defamatory remarks to the Incident Commander (IC) and PIOs assigned to the fire, suggesting her presence on the fire posed a risk and potential embarrassment to the Agency. S2 denied making defamatory remarks as alleged. Specifically, S2 stated that during Complainant’s Berry Fire assignment, the IC contacted and informed him that Complainant was being sent home from the fire for being disruptive and creating issues with her supervisors. S1 also denied making any defamatory remarks. S1 noted that he received reports from the IC and two PIOs on the Berry Fire that documented Complainant’s disruptive behavior and failure to follow legitimate management instructions. S1 stated that the conversations he had with the fire managers were cordial and professional at all times and he denied using defamatory language. Regarding claim (2), Complainant claimed that S2 admonished her in front of the Acting Deputy Chief about her conduct at the funeral of an identified employee who had committed suicide stating that he heard Complainant had behaved in a manner that was inappropriate and overly emotional. S2 indicated that he was away on travel when he learned of the suicide of the identified employee and since he was not able to reach either of his deputies, he asked an employee (EE), who previously served a detail to the Deputy Branch position, to attend the funeral and represent the Branch. The EE indicated that some employees told her about Complainant’s inappropriate behavior at a group dinner in which Complainant bad mouthed Branch management and EE. S2 stated that he later learned that Complainant was upset that she was not chosen to represent the Branch at the funeral. 2019003166 6 The record indicates that Complainant and a number of employees were allowed to attend the funeral on administrative leave. S2 stated that when he returned to the office, Complainant asked him and the Acting Deputy Chief to meet with her. During the meeting, S2 stated Complainant criticized him about his decision concerning the funeral arrangements, including his designation of EE as representative. S2 stated at no point did he admonish Complainant rather he told her that he received feedback from other staff who attended the funeral that she might not have conducted herself appropriately for such a solemn occasion. The Acting Deputy Chief indicated that S2’s comments to Complainant during the meeting were not demeaning or harassing. Regarding claim (3), S1 indicated that Complainant was rated a Level 3, Fully Successful, for a critical component of the Customer Interaction and Service performance element at issue. Complainant nevertheless received an overall performance rating of a Level 4, Superior, rating for her performance. The possible performance ratings (from highest to lowest) were Exceptional (Level 5), Superior (Level 4), Fully Successful (Level 3), Minimally Successful (Level 2), and Unsatisfactory (Level 1). S2 stated that he provided information to S1 that the staff repeatedly informed him of the difficulty of working with Complainant in a team situation. A few employees confirmed that although Complainant did her job exceptionally well, she was sometimes difficult to work with. Regarding claim (4), Complainant claimed that she had a brief conversation with the Division Chief, the Natural Resources and Conservation Planning (NRCP), in December 2016, regarding her concerns about not being used in her job and concerns about her working conditions. Complainant claimed that as a result of her meeting with the NRCP Division Chief, she was issued the proposed suspension, described in claim (5). The NRCP Division Chief stated that when Complainant came to visit Headquarters, she talked to him about her concerns and criticisms of S1 and S2 regarding the Berry Fire incident, described in claim (5). He told Complainant that S1 was considering disciplinary action regarding the subject incident. He believed that Complainant came to him hoping he would intervene and stop any disciplinary action, but he had nothing to do with the proposed suspension. Regarding claim (5), S1 indicated that on January 3, 2017, he issued Complainant a Notice of Proposed Suspension of ten days for her unprofessional conduct while she was assigned as a PIO to an emergency fire assignment in Grand Teton National Park, Wyoming (“the Berry Fire”) from August 23 - 31, 2016. Specifically, Complainant was charged with four specifications of disruptive behavior and failure to follow supervisory instructions. S1 stated that during the assignment, Complainant required above-average supervision due to her failure to follow supervisory directions and her unwillingness to work with staff members; on August 30, 2016, she requested, and was granted, to be released from the assignment without a legitimate reason although she was needed in the assignment which forced the Agency to mobilize another employee to fill her spot; and the IC, two PIOs, and her supervisors at the assignment submitted 2019003166 7 detailed written reports indicating their difficulty working with her, her insubordination, and her disruptive behavior. S2, after reviewing the proposed suspension and Complainant’s response, issued a decision on April 12, 2017, to ultimately suspend her for five days for her misconduct. After a review of the record, the AJ found, and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Complainant has not claimed that she was denied a reasonable accommodation for her disabilities. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her harassment claim, there is no evident connection between the alleged harassment and Complainant’s membership in any protected class. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2019003166 8 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. 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 March 12, 2020 Date