Kylee C.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionMay 9, 20180120162085 (E.E.O.C. May. 9, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kylee C.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency. Appeal No. 0120162085 Hearing No. 560-2015-00031X Agency No. 9V1M14026F16 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 12, 2016, final order 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., 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, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Sheet Metal Mechanic, WG-3806-10, at Tinker Air Force Base in Oklahoma City, Oklahoma. On March 3, 2014, Complainant filed an EEO complaint in which she raised claims of harassment and disparate treatment. She identified her first-line supervisor (S1), her second-line supervisor (S2), and her Work Leader as the responsible management officials. 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. 0120162085 2 Complainant’s complaint consisted of the following incidents: A. Complainant was subjected to a hostile work environment from May 29, 2013 through December 3, 2013 because of her race (African American), age (54), and disability (mental/anxiety/stress) as evidenced by the following events: 1. On May 29, 2013, Complainant’s management stated to Complainant: “you act like you are mad, you are beating or hammering on that fastener like you are mad.” 2. On June 8, 2013, Complainant’s management watched Complainant the entire shift and removed a napkin she had thrown in the trash and inspected it. 3. On June 10, 2013, Complainant was decertified by her first-level supervisor (S1). 4. On June 17, 2013, S1 allowed two coworkers to interfere with Complainant while learning and working on inboard and tip parts. 5. From June 25, 2013 to December 2, 2013, Complainant had been denied proper training as a WG-3806-10 Sheet Metal Mechanic. 6. On August 22, 2013, Complainant’s second-level supervisor (S2) failed to take any corrective action against S1 and a coworker for their harassing behavior towards her. 7. On November 8 and November 12, 2013, S1 discussed Complainant’s work processes with co-workers. 8. On November 12, 2013, S2 stated to Complainant: “You can’t retain information and can’t complete a task on your own.” 9. On November 22, 2013, Complaint was issued a memorandum stating she will report to the Drill Out Shop, effective December 2, 2013. B. Whether Complaint was subjected to disparate treatment on the bases of race, age, disability, and reprisal for filing the instant complaint, when, on December 3, 2013, she was assigned to the Drill Out Shop, thereby denying her any opportunities for advancement as a sheet metal mechanic. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 18, 2015, motion for a decision without a hearing and issued a decision without a hearing on March 31, 2016. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 0120162085 3 Harassment Incident A1: Complainant averred that on May 29, 2013, her Work Leader said to her, “You act like you are mad; you are beating or hammering on that fastener like you are mad.” The Work Leader responded that she did not recall making the statement that Complainant attributed to her. Complainant admitted that she never told her supervisors or anyone in management that she felt that she had been harassed by the Work Leader as a result of those comments. Incident A2: Complainant averred that on June 8, 2013, the Work Leader had watched both her and her Coworker for their entire shift and had picked up a napkin that Complainant had deposited into the trash so that she, the Work Leader, could inspect it. The Work Leader denied that she had watched Complainant for her shift. She also denied removing a napkin from the trash that Complainant had thrown away. Complainant admitted that she never informed management of this incident. Incident A3: Complainant averred that on June 10, 2013, S1 decertified Complainant from the task of applying sealant to the seams of metallic aircraft parts.2 Complainant had failed a personal evaluation on this task. The personal evaluation was conducted by a Quality Assurance Specialist. Complainant herself admitted that she had failed the task during the personal evaluation. S1 averred that when an employee fails a personal evaluation on a particular task, a supervisor is required to decertify an employee from that task until such time as the employee can be recertified. Complainant received her recertification for applying sealants on September 24, 2013. Incident A4: Complainant averred that on June 17, 2013, S1 allowed two Coworkers to interfere with her while she was attempting to learn about working on inboard and tip parts. However, she admitted that she never told anyone in management that she felt that she was being harassed or interfered with by these two Coworkers. They were assisting her in installing the endboard of a stabilizer. Complainant did not inform either of her Coworkers that she did need or want their assistance. Incident A5: Complainant had been a WG-3806 Sheet Metal Mechanic since May 2009 and at grade level 10 since April 2010. Shortly after she was hired, Complainant completed a six-week sheet metal course. Generally, by the time a mechanic is promoted to WG-10, most of that employee’s training has been accomplished. Complainant had received more training than most new employees. The AJ noted that management had assigned Complainant a new trainer on four different occasions. Complainant never identified a specific training that she was denied. Incident A6: Complainant averred that S2 had failed to take any action against S1 and a Coworker for alleged acts of harassment directed at her. She averred that she had met with S2 to inform him that she was “stressed,” but did not report any harassment to S2. 2 The AJ erroneously identified the date of this incident as July 16, 2013. AJ Decision, p. 7, ¶ 17. 0120162085 4 Incident A7: Complainant averred that on November 8 and November 12, 2013, S1 had discussed her work processes with her Co-workers. Complainant had made a workmanship error when drilling holes in the metal skin of an aircraft stabilizer. There were no indentations on the metal skin where she was drilling to indicate that holes for rivets needed to be drilled at that spot. She proceeded to drill holes anyway. Complainant’s Coworkers had seen her work and had brought it to management’s attention. In addition, S1 had observed Complainant using a punch to beat on an area of the aircraft stabilizer skin, damaging the stabilizer. The damage to the aircraft stabilizer skin was so severe that S1 had to contact the engineering department to determine whether or not the part could be repaired. Complainant was not disciplined for this workmanship issue and her pay, grade, and work status remained unchanged. Incident A8: S1 admitted that he had criticized Complainant regarding the drilling incident when he told her that she did not appear to be retaining the information she had been given during her training. Incidents A9 & B: Complainant had been assigned to a detail at the Drill Out Shop, effective December 2, 2013. S1 and S2 characterized the Drill Out Shop as providing valuable support to the other shops at the facility, and that being assigned to the Drill Out Shop did not impact on an employee’s ability to get promoted, grade, pay, or status. They averred that Complainant was assigned to the Drill Out Shop based on the difficulties she was having in performing her assigned job tasks, as evidenced by the drilling incident. ANALYSIS AND FINDINGS Summary Judgment 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. Harassment – Claim (A) To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical 0120162085 5 conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (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). To ultimately prevail on her harassment claim, Complainant must show that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the incidents occurred because of a protected basis. Only if Complainant satisfies her burden of proof with respect to both of these elements, motive and hostility, will the question of Agency liability for discriminatory harassment present itself. Complainant established the first element of a claim of harassment by virtue of her disability, age, and race. We would also agree that the conduct of S1 and S2 in the various incidents comprising Claim A is unwelcome from her own subjective perspective, which is enough to satisfy the second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27, 2017). In order to establish the third element of a claim of discriminatory harassment, Complainant must show that in taking the actions that comprise her harassment claim, S1, S2, or anyone else involved in those incidents relied on considerations of her disability, age, or race that are expressly proscribed by the statutes that the Commission enforces. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016). S1, S2, and the Work Leader provided a reason for their actions in connection with all nine incidents. As to incidents A1 and A2, the Work Leader denied that either incident had taken place. Regarding incident A3, S1 was simply following standard procedures when he decertified Complainant from the task of applying sealants to sheet metal seams on aircraft due to her failure of the personal evaluation. Complainant was recertified several months later, presumably after she had passed a personal evaluation on that task. Concerning incident A4, Complainant was assisted by two Coworkers and never characterized their attempts to assist her as harassment. With respect to incident A5, there are no indications that she was ever denied training, but was assigned four different trainers after repeated complaints about not receiving training. With regard to incident A6, Complainant does not appear to have reported to S2 any acts of harassment being directed toward her. As to incidents A7 and A8, these incidents amounted to nothing more than management’s focus on a performance-related issue concerning incorrect riveting and criticism of Complainant’s handling of the riveting task. Regarding incident A9, Complainant was assigned to the Drill Out Shop because of her performance deficiencies in sheet metal work on aircraft. 0120162085 6 On appeal, Complainant raises a number of contentions. She contends that S1 and S2, and perhaps other managers, were trying to set her up for termination, that the Agency’s attorney withheld evidence from her case and restricted her from discovery, that witnesses were not called on her behalf, and that in ruling against her, the AJ cited to irrelevant cases. She also contends that the investigation was “botched,” and “mishandled” by the Agency and by the Commission. Apart from these vague, generalized assertions, however, Complainant has not presented affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that expose any weaknesses, inconsistencies, or contradictions in the explanations provided by S1, S2, and the Work Leader for the various incidents to such an extent that a reasonable fact finder could rationally find those explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). None of Complainant’s appeal contentions are sufficient to raise a genuine issue of material fact as to whether S1, S2, or the Work Leader were motivated by unlawful considerations of her race, disability, or age in connection with incidents A1 through A9. Because Complainant has not established a connection between her protected bases and those incidents, no further inquiry is necessary as to whether they rise to the level of harassment. Tynisha H. v. Dept. of State, EEOC Appeal No. 0120141395 (March 17, 2017). Disparate Treatment – Claim B To prevail in her disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As a first step, she must generally 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. The prima facie inquiry may be dispensed in this case, however, since S1 and S2 articulated legitimate and nondiscriminatory reasons for assigning her to the Drill Out Shop. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The AJ found that both S1 and S2 had made the decision to have Complainant report to the Drill Out Shop based upon the fact that she was having performance difficulties as evidenced by the improper drilling incident. 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); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated by using the same method of proof used to satisfy element (3) of the harassment analysis set forth above. Opare-Addo, supra. Complainant maintains that being assigned to the Drill Out Shop would have a detrimental impact on her ability to be promoted. The AJ found that this was clearly not the case. Again, Complainant has not presented any testimonial or documentary evidence that contradicts the explanations given by S1 and S2 for detailing her to the Drill Out Shop or that undermine the truthfulness of their statements. 0120162085 7 We therefore agree with the AJ that Complainant has not raised a genuine issue of material fact regarding the motives of S1 and S2 in assigning her to the Drill Out Shop in December 2013, such that a hearing was required to make credibility determinations or findings of fact. We find that the AJ properly found that Complainant had not established that she had been discriminated against as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding that Complainant did not establish that she had been discriminated against. 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. 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). 0120162085 8 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, 2018 Date Copy with citationCopy as parenthetical citation