0120100837
10-12-2012
Mary O. Holt, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Mary O. Holt,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120100837
Agency No. HS-09-USCG-000921-CLMLCN
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Contract Specialist (Intern), GS-1102-07 at the Agency's United States Coast Guard (USCG), Maintenance and Logistics Command - Atlantic (MLCLANT) Finance Division, in Norfolk, Virginia. Complainant sought counseling and subsequently filed a formal complaint.
Complainant alleged that she was subjected to harassment on the bases of race (Asian American), national origin (Asian-American), and age (over 40) when:
1. From August 2008 to September 4, 2008, the USCG subjected Complainant to the following incidents of harassment:
a) A male coworker approached Complainant, sniffed, and asked if she was Filipino.
b) The Contracting Officer (CO) asked Complainant, "What are you?"
c) The CO told Complainant, "[She] was lucky to even [have] a desk since [she] was just an intern and at the bottom of the food chain."
d) The CO told Complainant, "I don't have time for you," "Are you hiding from me," "What have you been doing," and "Oh, you're working, huh?"
e) The CO told Complainant, "You have a bad attitude," and "Lots of people are complaining about you."
f) The CO refused to address the discrepancy between Complainant's "glowing" July 2008 evaluation and the CO's comment Complainant had a "bad attitude."
g) The CO refused to explain to Complainant the reasons why she was angry with Complainant.
h) The CO told Complainant, "You are dismissed," "I'm going to write up a letter of insubordination," and "Get out of my office."
i) The CO refused to respond to Complainant's electronic mail messages and phone calls after August 25, 2008.
j) The CO referred to Complainant as "typhoid/typhoon Mary."
2. On September 4, 2008, management terminated Complainant's employment as a Contract Specialist (Intern).
After completion of the investigation of the complaint, Complainant did not request a hearing. On November 23, 2009, the Agency issued a decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Thereafter, Complainant filed the instant appeal.
On appeal, the Agency argued that the totality of the evidence showed only that Complainant engaged in inappropriate conduct on August 27, 2008, during her probationary period, which resulted in her termination. Further, the Agency asserted that nothing in the record suggested that Complainant's race, national origin, or age played any role in the way the Agency officials treated Complainant or in the reason Complainant was terminated from federal employment.
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 EEOC Management Directive 110, Chapter 9, � VI.A. November 9, 1999) (explaining that 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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile work environment, 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 conduct involving the protected class; (3) the harassment complained of was based on her 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. 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 at 6.
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1a through 1j, first, the CO denied that Complainant ever told her that a Coast Guard Official had sniffed her and asked Complainant about her national origin. The CO explained that it was Complainant who first joked about being a "tornado." The CO stated that, on Complainant's first day at work, a tornado hit the area, which led to a joke that Complainant was a "tornado coming into the office." The CO explained that, as a joke she wrote on a get well card that was sent to Complainant the words "tornado Mary" and then corrected it by writing "typhoon Mary" or "typhoid Mary." Complainant also admitted that the CO also wrote that Complainant should stop sending electronic mail messages to the office and get some rest on the card, which showed that the CO cared about Complainant and meant no harm by her joke. The CO denied making any comments about age when Complainant told her about her shingles and explained that she does not know what shingles and age have to do with one another. The CO explained that during Complainant's last month of employment the CO and Complainant interacted very infrequently, which left little time for her to allegedly harass Complainant. The CO stated that several of her subordinate employees were in the same age range as Complainant and that she has had no problems with them. The CO explained that Complainant's misconduct on August 27, 2008, was the first and only time that any subordinate employee had behaved in a belligerent manner toward her.
As to the claim of harassment, the Agency found that the totality of the evidence failed to show that the USCG subjected Complainant to a discriminatory hostile work environment. First, the Agency stated that the record contained no evidence demonstrating the alleged incidents of hostile work environment were based upon race, national origin, or age. Second, the Agency stated that, while Complainant perceived that management subjected her to inappropriate, unwelcome comments, the record does not contain any evidence demonstrating that the USCG subjected Complainant to a hostile work environment.
As to claim 2, the CO stated that she was the Deciding Official for the termination of Complainant on September 4, 2008. The CO stated that she decided to terminate Complainant's employment due to insubordination and misconduct. Specifically, the CO stated that Complainant was disrespectful, yelled at her, refused to leave the CO's office, and questioned the validity of a test Complainant failed.
The Chief of the Contracting (Chief) asserted that he concurred with the CO's recommendation to terminate Complainant for insubordination and misconduct. The CO explained that Complainant was an Intern and was in a probationary period. The CO stated that this type of employment can end at any time. The CO stated that termination procedures for a probationary employee were very different than for an employee that is tenured.
The Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Additionally, the Commission finds that Complainant has failed to show by a preponderance of the evidence that she was subjected to discrimination on the bases of race, national origin, or age. Moreover, Complainant has failed to show that the alleged harassing incidents, when considered together, constitute a hostile work environment.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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
October 12, 2012
__________________
Date
2
0120100837
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100837