0120111489
08-31-2012
Anna L. Humphrey, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Anna L. Humphrey,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120111489
Agency No. HHS-NIH-0250-2010
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the December 22, 2010 final Agency decision (FAD) 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst in the Administrative and Management Program Section, at the Agency's National Institutes of Health in Bethesda, Maryland. From May 2009 through November 2009, Complainant was assigned to work on a project drafting a Standard Operating Procedure (SOP) regarding overtime and compensatory time and producing an oral presentation of the new policies and procedures. Complainant's second-level supervisor (S2) met with Complainant and Complainant's first-level supervisor (S1) to explain expectations for the project. S2 grew unhappy with Complainant's progress on the project and began to work more closely with Complainant on the project. After Complainant gave her first oral presentation, S2 believed that Complainant's delivery was not satisfactory. Complainant resisted management's attempts to help improve the presentation and deliver the information that management wanted. As a result of S2's dissatisfaction with Complainant's performance on this project, Complainant received a minimally successful rating on her performance rating in March 2010.
On May 12, 2009, Complainant sent an email to S1 stating that she would not be in the next day due to her husband's doctor's appointment and attached a draft of the SOP. Upon her return to work, Complainant was told the SOP was a high priority and that she had not followed the Agency's leave request policy. While Complainant was out, no work on the SOP occurred which resulted in S1 requesting an extension. On May 19, 2009, Complainant received an email counseling regarding the Agency's leave policies.
On March 18, 2010, Complainant and her supervisors met to discuss work on the Administrative Technician Pipeline Program (ATP Program) project. Complainant alleged that her supervisors spoke to her in a harsh tone of voice during this meeting and questioned her about changes that other staff had actually made. Complainant stated that she had only made changes according to the suggestions of management.
Complainant requested leave for April 5 through April 9, 2010. A few days before her leave was scheduled to begin, Complainant stated that S2 cancelled the leave. Complainant asserted that she had completed her part of the ATP Program presentation and corrected management's requested changes. On April 8, 2010, Complainant stated management scheduled a meeting regarding the project and asked her to participate even though she was out on leave that day. Complainant stated that she was medicated at the time and was asleep when they called. Complainant stated that S2 indicated that she would be charged as absent without official leave (AWOL) if she did not provide medical documentation to support her absence from work.
On April 15, 2010, Complainant claimed that S2 asked if she had been named in her EEO complaint. Complainant asserted that she told S2 that she did not want to discuss her complaint and they resumed discussing the project. Complainant stated that S2 told her the ATP Program project needed additional information and when she asked specifically what was needed, S2 suddenly blurted out "I hate you." Complainant replied that "God does not like hate" and S2 responded that she did not care. S2 then calmed down and informed Complainant what information was needed in the project. Complainant alleged that S2 then told her that this would affect her performance rating and she needed to find another job.
On May 19, 2010, Complainant filed a formal EEO complaint alleging that the Agency discriminated against and subjected her to a hostile work environment in reprisal for prior protected EEO activity when:
1. On May 19, 2009, she received a Letter of Counseling;
2. On March 18, 2010, Complainant was spoken to in a harsh tone of voice by her supervisors while attending a meeting;
3. On March 24, 2010, Complainant received a minimally successful performance rating;
4. Two days before the leave was to be taken, S1 denied her leave request for the period of April 5 - April 9, 2010;
5. On April 8, 2010, S1 left her a voicemail message stating Complainant would be placed on Absent Without Leave (AWOL) if she did not provide medical documentation to support her absence from work; and
6. On April 15, 2010, Complainant's second-line supervisor (S2) inquired about her EEO complaint and stated that she hated Complainant and did not want to be named in the complaint.1
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation (RO1) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b) on December 22, 2010.
In the FAD, the Agency initially determined that Complainant had established a prima facie case of reprisal. Next, the Agency found that management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), S2 affirmed that she and S1 discussed Complainant's conduct issues and, based on Complainant's failure to follow the leave policy during the SOP special project, they decided to issue the Letter of Counseling. Complainant's third-level supervisor (S3) added that she was shown documents indicating that Complainant's work was not completed in a satisfactory manner and it was difficult getting through to Complainant to get her work done as expected. As a result, Complainant was issued the Letter of Counseling.
Regarding claim (2), all three supervisors present at the meeting denied anyone spoke to Complainant in a harsh tone of voice. S3 added that Complainant disagreed with the feedback she received about her performance. Regarding claim (3), S2 stated that for a significant part of the 2009 performance year, the overtime project was Complainant's assignment. Expectations were fully explained to Complainant, but she was resistant to suggestions to improve her performance. S1 affirmed that Complainant was asked to perform specific tasks which she did not complete. S1 confirmed that Complainant's presentation received negative feedback from the employees who attended and when informed of that, Complainant stated the problem was not her but was the audience. As a result of her performance on the project, Complainant received a minimally successful performance rating.
As to claims (4) and (5), S1 avowed that all leave was denied for employees working on the high priority project and all were notified that any missed days off would be restored once the project was completed. She stated Complainant was not singled out and was notified on March 24, 2010 of the upcoming changes. Additionally, Complainant was also informed that her alternative work schedule (AWS) day off would be changed and she would be allowed to take it on a later date. Complainant called out sick and took her AWS day as well and was off for two days during the restricted leave period. Management discussed the matter with Employee Relations and the decision was made to inform Complainant by email and voicemail that she may be charged with AWOL. Ultimately, management decided to grant Complainant sick leave and not charge her with AWOL.
Finally, in regard to claim (6), S2 admitted making the comment to Complainant; however, she affirmed that she made the comment out of frustration about the number of hours the project was taking and not Complainant's prior EEO activity. Additionally, S2 immediately apologized to Complainant. S3 immediately counseled S2 and suggested she take a training class called "How to Communicate with Tact and Professionalism," to which S2 agreed.
The Agency determined that Complainant had failed to provide evidence showing that the real reasons for its actions was based on her prior EEO activity. Although she provided rebuttal statements, Complainant did not provide any evidence to support her contention that management's offered reasons were false or a pretext for discrimination based on her prior protected EEO activity. As a result, the Agency found that Complainant had not been retaliated against or subjected to a hostile work environment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that significant details were missing in support of her claims and as a result, the outcome was reached in favor of the Agency. Complainant submitted documentation that she asserts supports her claim that her lowered performance rating was the result of retaliation. Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Hostile Work Environment
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. U.S. Postal Serv., 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 (Mar. 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 environment 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 conduct involving the protected class; (3) the harassment complained of was based on his 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) mere 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.
Here, Complainant asserted that based on her protected EEO activity, management continuously subjected her to a hostile work environment. The Commission finds that Complainant has not shown that she was subjected to a retaliatory hostile work environment. Complainant failed to show that any of the alleged incidents were unlawfully motivated by retaliatory animus. Specifically, as to claim (1), Complainant sent an email the night of May 18, 2009 stating that she would not be in the next day. S1 affirmed that the Agency's policy required employees to call their supervisor to request leave prior to taking it. ROI, Ex. 11. at 2. As a result of Complainant's failure to follow the policy, S1 was never given the option to deny the leave request and ask Complainant to come in or ask if Complainant could telework. Id. S1 was forced to request an extension on the project because nothing was done on Complainant's part of the project while she was out as other staff had their own assignments to complete. Id. As a result, S1 issued Complainant a counseling memorandum, which noted that it was not disciplinary and would not be placed in Complainant's Official Personnel Folder. ROI, Ex. 20.
Regarding claim (2), all supervisors who were present at the March 18, 2010 meeting denied that anyone used a harsh tone of voice with Complainant. S3 affirmed that the supervisors simply expressed to Complainant that her work on the ATP Program was not adequate and lacked substance. ROI, Ex. 9, at 3. S3 noted that no one raised their voice, but it was clear that Complainant was disturbed and upset by the feedback provided by her supervisors. Id.
As to claim (3), S1 and S2 asserted that Complainant's performance on the SOP project was not satisfactory. Particularly, Complainant's oral presentation received negative feedback from her audience, and she opposed efforts to improve it. ROI, Ex. 11, at 4. When S1 and S2 attempted to provide Complainant training and guidance, she responded that she did not need it. Id. S2 added that Complainant resisted presenting the information that management wanted conveyed and her performance on this project was why she was rated minimally successful. ROI, Ex. 10, at 4-5.
Regarding claims (4) and (5), all employees working on the ATP Program project were informed that leave would not be granted and tour changes would be denied until the high priority project was completed. ROI, Ex. 11, at 3-4. Complainant's AWS off-day was moved to April 9, 2010, but Complainant called in sick on April 8, 2010, after she had been denied annual leave. Id. at 4. Management discussed the matter with the Employee Relations Office, who advised that they could charge Complainant as AWOL. ROI, Ex. 10, at 4. Instead, management granted Complainant sick leave without requesting medical documentation and issued Complainant a memorandum about leave during high priority projects. Id.
Finally, as to claim (6), S2 confirmed that on April 13, 2010, during their daily discussion about the project she asked Complainant why Complainant included S2 in her EEO complaint. ROI, Ex. 10, at 3. S2 affirmed that Complainant told her that she would find out. Id. The project was now overdue and S2 was forced to put in long hours and put aside other work because Complainant was not doing what management wanted. Id. During their meeting on April 15, 2010, S2 asked Complainant why she still could not complete the assignment as management had directed as they had previously discussed numerous times. Id. S2 blurted out that she hated Complainant, went to the restroom, but later returned to apologize for her outburst. Id. S2 stressed that her outburst was a reaction to the level of frustration caused by the inadequate work Complainant was providing and the extra time she had to put in on the project and was not related to Complainant's protected EEO activity. Id. S3 counseled S2 over the incident and suggested that she take a training class related to professional communication, to which S2 agreed. ROI, Ex. 9, at 2.
The Commission finds that Complainant has not shown that any of the Agency's actions were based on retaliatory animus. Accordingly, the Commission finds that the Complainant was not subjected to a hostile work environment as alleged. Finally, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that she has not shown that the Agency's reasons for its actions were a pretext for reprisal. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. As a result, the Commission finds that Complainant has not established that she was subjected to reprisal or a hostile work environment as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 tends 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 (Nov. 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
August 31, 2012
Date
1 The Commission has reordered Complainant's claims into chronological order for ease of reference.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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