0120170747
05-09-2017
Janet B.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janet B.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120170747
Hearing No. 430-2016-00087
Agency No. ATF-2014-00881
DECISION
On October 21, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 16, 2016, 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator at the Agency's Bureau of Alcohol, Tobacco, Firearms and Explosives, Charlotte Field Division, Fayetteville Field Office facility in Fayetteville, North Carolina.
On October 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female) when:
1. On May 5, 2014, Complainant was issued a Letter of Expectation;
2. On July 24, 2014, the Resident Agent in Charge (RAC) falsely accused Complainant of becoming "aggressive and argumentative" during a conversation;
3. On September 8, 2014, Complainant was advised that she would be temporarily detailed to the Greensboro, North Carolina Field Office for 30 calendar days.
Complainant amended her complaint on May 6, 2015, to include additional claims of discrimination and events constituting harassment on the bases of sex and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
4. On May 5, 2014, Complainant's supervisor (Supervisor) failed to contact other law enforcement agencies to solicit feedback in their respective counties on her job performance.
5. On May 12, 2014, the Supervisor interfered with the performance of her duties by: 1) instructing her not to write a report of investigation for a witness interview conducted with the Sanford Police Department; 2) instructing her not to use the word "interview" as the opening in a report of investigation; and 3) informing her that the "TFO" would attend future meetings with her and the Supervisor.
6. On May 20, 2014, the Supervisor attempted to hinder her production by instructing her not to investigate three cases referred by the Assistant United States Attorney (AUSA) for federal prosecution.
7. On June 12, 2014, the Supervisor alleged abused Agency policy when he made a comment to her, "I'm trying to help you get off this Performance Improvement Plan."
8. On June 9, 2014, the Supervisor inappropriately asked her if she was interested in applying for a program at the same time he was counseling her for poor performance.
9. On June 14 and 17, 2014, the Supervisor failed to provide her with prior notification before canceling a performance meeting and failed to provide written documentation to her regarding removal or the status of the Letter of Expectations.
Then on September 24, 2015, Complainant requested another amendment to her formal complaint. The Agency accepted the additional events. Specifically, Complainant alleged she had been subjected to unlawful discrimination and harassment on the bases of sex and in reprisal for her EEO activity when:
10. On or about August 31, 2015, Complainant was forced to relocate to Greensboro, North Carolina, after she informed the Special Agent in Charge of the Charlotte Field Division that she would be contacting the Senator regarding retaliation.
11. As of September 24, 2015, the Office of Professional Responsibility and Security Operations has refused to investigate in accordance with Agency policy the integrity and misconduct violations reported by Complainant against the RAC.
The matter was forwarded for an investigation. The Investigator began the investigation in February 2015 which was not concluded until October 2015. The Investigator indicated that he made several attempts by email to get in touch with Complainant to schedule an interview. He provided her with an interrogatory which he did via email stating he would like the responses back in a week. He also informed Complainant that he would be available via telephone. When the deadlines set by the Investigator passed, he contacted her again over the telephone. She informed the Investigator that she was considering providing a "statement" instead of responses to the interrogatory. He followed up on the call via email providing her with the address to which she could send her statement or any other evidence. Complainant did not respond to the interrogatory. The Investigator provided Complainant another email with the interrogatory. However, the investigation was concluded by the Investigator without Complainant providing a statement or evidence.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. The AJ ordered the dismissal of the hearing and remanded the matter back to the Agency for a final decision on April 4, 2016.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision noted that Complainant failed to cooperate with the investigation into her complaint of discrimination and cited to the investigator's attempts to obtain evidence from Complainant in support of her complaint. The decision found that Complainant declined to be interviewed and had filed a prior EEO complaint. As such, the Agency indicated that Complainant was aware of her role in the investigation and was cautioned about her failure to cooperate could lead to negative inferences being drawn against her position. Based on Complainant's failure to comply, the Agency held that there was no reasonable basis to adjudicate the complaint. As such, the decision summarily held that, based on Complainant's lack of evidence, the complaint must be denied. Accordingly, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged.
This appeal followed.3
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. (Aug. 5, 2015) (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").
It is well-settled that harassment based on an individual's sex and/or 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 class and/or engaged in prior EEO activity; (2) she 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 sex 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 (March 8, 1994). As Complainant has not engaged in the investigation nor provided any evidence in support of her complaint, we find that Complainant has not shown that she was subjected to unlawful discrimination.
Complainant also asserted that she was subjected to disparate treatment based on sex and in retaliation. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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 Department of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Again, Complainant failed to cooperate with the Agency's EEO investigation into the matter. As such, we find that Complainant has not established her prima facie case of discrimination based on sex 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 decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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. 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
May 9, 2017
__________________
Date
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.
2 Complainant indicated that she received the decision on September 24, 2016.
3 We note that the Agency initially argued that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely filing of the formal complaint. Complainant argued that her formal complaint was filed in a timely manner. Subsequently, the Agency withdrew its dismissal claim noting that the matter was filed in a timely manner.
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