Breanna S.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 19, 2016
0120142482 (E.E.O.C. Jul. 19, 2016)

0120142482

07-19-2016

Breanna S.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Breanna S.,1

Complainant,

v.

Deborah Lee James,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120142482

Agency No. 7A0J11025F13

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 13, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Exceptional Family Member Program Coordinator, GS-0101-11, at the Agency's Warfighter and Family Readiness Center (W&FRC), Warfighter and Family Services Flight, 502nd Force Support Squadron on Joint Base San Antonio, Fort Sam Houston, Texas.

On October 13, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of sex (female) and in reprisal for prior protected activity when:

1. on or about October 1, 2010 to September 2011, management has not promoted her into the position of Family Advocacy Program Manager, GS-0185-12, where she is currently "acting" in that capacity;

2. on or about April 2011/May 2011, management allowed the Army Community Service Program Specialist to unlock Complainant's door and go through items on her desk;

3. on August 1, 2011, management allowed the Army Support Activity (ASA) Sexual Assault Program Manager to schedule her employees for the "on-call" ASA Sexual Assault schedule and did not schedule himself;

4. on September 18, 2011, the Deputy Director sent a derogatory and rude e-mail to her, and copied her subordinate employee;

5. on September 23, 2011, the Chief, Warfighter and Family Services Flight, bypassed her as the Program Manager, and went directly to her subordinates regarding issues with her program;

6. on November 30, 2011, she received a memorandum terminating her temporary duty appointment of Lead Work/Life Consultant;

7. on May 11, 2011, management took no action against her co-worker for making the following comment "yes, it is because someone was whining about space being invaded," and for failing to restrain him as he started toward Complainant;

8. her supervisor has not acknowledged her request to hear the audio recording of the Warfighter & Family Readiness Program (W&FR) Managers meeting minutes to confirm if she made the following statement, "[Complainant] said she feels the Air Force is attempting to extinguish the programs we have on Fort Sam Houston and they are trying to take the Special Needs Accommodation Process" as stated in the W&FR Managers meeting minutes which she feels could be considered to be inflammatory;

9. on October 13, 2011, she became aware that her award nomination was not submitted for the quarterly awards;

10. since November 30, 2011, her supervisor made snide comments to co-workers regarding the position Complainant was in and allowed employees to assume she was fired from her position;

11. on April 11, 2012, she became aware that she was not selected for the Warfighter and Family Readiness Director, GS-0101-13 position; and

12. on July 26, 2012, her supervisor issued her a Letter of Proposed Suspension effective no earlier than seven (7) calendar days of receipt.2

After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on May 13, 2014, pursuant to 29 C.F.R. � 1614.110(b).

In its May 13, 2014 final decision, the Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.

Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See 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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, prior to October 1, 2010, the W&FRC and its civilian employees, including Complainant, belonged to the Department of Army which had been under a hiring freeze since early 2010. On October 1, 2010, various base operating functions, including W&FRC, were transferred to the Department of Air Force and its civilian employees, including Complainant, became Air Force civilian employees. At that time, the Air Force was also under a hiring freeze which last until approximately February 2012. Due to the hiring freeze, many civilian employees were detailed into key positions that could not otherwise be fulfilled. The record reflects that because the Family Advocacy Program Manager position became vacant shortly before W&FRC transferred to the Air Force, the Chief, Warfighter and Family Services Flight (Chief), gave Complainant a temporary duty appointment as the Acting Lead Work/Life Consultant for the 502nd Force Support Squadron, effective October 1, 2010 until November 30, 2011.

Complainant's assignment was in addition to Complainant's regular duties as an Exceptional Family Member Program Coordinator. In the fall of 2011, the Family Advocacy program, along with the Family Advocacy Program Manager position and two other positions, were realigned to the Air Force 59th Medical Wing at which time Complainant's temporary duty appointment to the Family Advocacy Program Manager duties ended. Complainant was therefore returned to her Exceptional Family Member Program Coordinator position.

The Chief stated that in regard to Complainant's Family Advocacy Program Manager detail, the Agency was under a hiring freeze and "the Air Force would not let us hire anyone or submit any Requests for Personnel Actions (RPA). We could not advertise the position or classify the position because of the freeze. Subsequently, Air Force assumed all responsibility with the Family Advocate program. They also took positions with one of them being the Family Advocate manager position...we consulted and asked for guidance with [Employee Relations Manager], from the Civilian Personnel Office, regarding [Complainant]." As the duties were no longer there for her to perform, we were advised to terminate [Complainant's] detail and put her back in her original position, which is Exceptional Family Member Program Manager GS-0101-11."

Further, the Chief stated that Agency management initially verbally detailed Complainant into the position of Family Advocacy Program Manager "for a couple of months and then we were told by Personnel that we needed to do it in writing. The detail was terminated maybe in November 2012. This was not a temporary promotion."

Regarding claim 2, the Chief stated that Complainant informed him that the Army Community Service Program Specialist (Specialist) went into her office and rearranged her papers. The Chief called the Specialist and his supervisor along with Complainant's supervisor. During the telephone conversation, the Chief stated that the Specialist denied going through her desk. The Chief stated, however, he spoke with the Financial Specialist "who told me that [Specialist] told her that he did go into [Complainant's] office. I informed her that I did not condone it and I verbally counseled [Specialist] not to go into [Complainant's] office without her permission. I also offered to take away his keys as he has a master key as the facility manager if she ([Complainant]) was not satisfied with the counseling and she told me she was satisfied and for me not to take away his keys. This issue was resolved at that time to [Complainant's] satisfaction."

Regarding claim 3, the Chief stated that during the relevant period, the Agency was running short of Victim Advocates (VAs) who are on-call after 4:00 p.m. in case of any sex abuse, child or spouse abuse The Chief stated because of the personnel shortage, the VAs were assigned on-call duty more than normal. The Chief stated at that time, Complainant wanted the ASA Program Manager to be on-call to help relieve some of the VAs. The Chief stated that the ASA Program Manager, an Army employee refused and his chain of command supported him.

Further, the Chief stated that Complainant "had a fit and she said that she was going to volunteer herself to be on call to help the VAs. She made it clear that her motivation to do this was to prove a point that -[ASA Program Manager] was not a team player. We asked the [ASA Program Manger's supervisor], which was [supervisor], if he could be assigned on-call duties and she said no. This was something that was outside of our control."

Regarding claim 4, the Deputy Director stated that his email to Complainant and the APF Resource Advisor (Advisor) "was not rude or derogatory and I respected both parties to try to calm the situation. [Complainant] never complained to me about me supposedly including [Complainant's subordinate employee]." The Deputy Director stated that initially, he was not involved in the e-mail chain until [Advisor] added his name to the email chain between her and Complainant which "had been going on since September 9, 2011 and I was copied on September 16, 2011. When I read this email which I was copied on, I understood that they were not trying to come up with a solution to the issue but were 'beating' each other up. They called each other names and blamed each other for the situation they were in."

Further, the Deputy Director stated that when he sent out an email by clicking "reply all," it was his intention to try to have everyone come together to solve the problem. Specifically, the Deputy Director stated "my intention was not to embarrass anyone but to diffuse the situation and have them work together. After I sent the email, [Complainant] responded to me two days later by email with a Word attachment which was very demeaning and critical of the job that [Advisor] was doing for the squadron. The email was sent solely to me. She was venting and expressing her discontent with [Advisor]. She was not asking me to do anything such as respond or help...I understood her frustrations but she was venting to the wrong person."

Complainant's supervisor stated that while he was not included in the Deputy Director's September 18, 2011 email, it was his understanding that the email the Deputy Director "was sent to people who were involved in the email traffic and [Deputy Director] was expressing that the staff needed to work together and stop going back and forth in email messages. [Deputy Director's] interpretation was that he did not intentionally include a subordinate of [Complainant] in the message."

The Chief stated that he was copied on the email traffic and "from what I read, it appeared that [Deputy Director] was trying to stop the pain and have everyone get along and behave like professionals."

Regarding claim 5, the Chief acknowledged bypassing Complainant and going directly to her subordinates because Complainant was on leave. The Chief stated that Complainant "was on leave and if I received a data call or request from my supervisors and needed an answer, I went to the employees who had the answer. They are my employees as well. I did not think it was reasonable to call her while she was on leave to ask her information or to ask for her permission to talk to her employees. I've done this before in the past and with all program managers."

Regarding claim 6, the Chief stated that the GS-12 Family Advocacy Program Manager and GS-12 Lead Work Life Consultant are the same position. The Chief further stated "we fought to keep this position, but Air Force said that it needed to go because Family Advocacy fell under the Air Force Medical realm...this was out of our control, so [Complainant's] temporary duty had to end...[Complainant] had previously sat in all the meetings about m y level regarding the Family Advocacy program and she was aware that we were fighting a losing battle to keep the Family Advocacy program."

Regarding claims 7 and 12, the supervisor stated that while he did not witness the May 11, 2011 incident between Complainant and co-worker, he was in his office when the co-worker "came to me in a hurry with [Complainant] running to catch up. He began to say something and then she started yelling something as if she thought he had already told me his story, then they started arguing with each other. He was on one side to my left and she was to my right...[Co-worker] was aggressive towards [Complainant]. There was an open lobby right outside my office and there were the public there. I felt the impact of the public seeing employees arguing like that had a bad impact on our organization. [Co-worker] made lunging movements toward [Complainant] and [Assistant] motioned as if to hold him back. I felt that his gestures were threatening but I felt she was provoking him and would not stop even when I asked her to calm down."

Further, the supervisor stated that he let Complainant go home for the day following the incident. The supervisor stated that he then contacted Labor Relations to discuss the incident. The supervisor stated at that point he learned that Complainant had already called Labor Relations "about what happened and they said her statement validated that she was absolutely at fault." The supervisor stated that he also collected statements from employees who had witnessed the incident. Thereafter, the supervisor decided to propose a 3-day suspension for Complainant. The supervisor stated "I thought a reprimand would not be enough and did not want a harsher action. This was a first offense for [Complainant] but as I felt she had been disrespectful to me before, I should have taken action before."

The Chief stated that he is the deciding official concerning the co-worker's proposed suspension regarding the inappropriate comment he made to Complainant. For instance, the Chief stated "I have not made a decision on the suspension yet. [Supervisor] proposed the 3 day suspension...I can say that appropriate action is also being taken against [co-worker] as well for his part in the incident that day."

Regarding claim 8, the supervisor stated "I have no problem if [Complainant] wants to listen to the tape, if it still exists. [Complainant] may have sent me an email requesting to review it in the past few weeks but I may not have gotten to them yet due to other matters taking my attention."

Regarding claim 9, the Chief stated that during the relevant period, he was involved in the quarterly award process. The Chief stated that then he forwarded nominations from the Flight Chiefs and forwarded them to the Acting Director of the Force Support Squadron (FSS). The Chief stated that one of the nominations was for Complainant. Furthermore, the Chief stated "no one from my flight made it past the FSS."

Regarding claim 10, the supervisor denied making snide comments to Complainant's co-workers that she was fired from her position. Specifically, the supervisor stated "I never said [Complainant] was fired from her position. I actually dragged my feet on removing her from the position. I had the letter for a month before giving it to her because I did not want to give it to her as I was concerned about how the letter would come across. I was worried about how it would be perceived. I made an announcement during staff call to the program managers that the position was no longer there and had been abolished."

The Chief stated that he has never heard the supervisor make snide comments about Complainant. The Chief further stated that the supervisor "did two things that I thought were very good. One, when her detail terminated, [supervisor] let [Complainant] stay in that office upstairs for about a month, so that the perception would not be that she was relieved. He also announced at a managers meeting that the position was going away, which would quell any rumors, if there were any, that [Complainant] was being relieved. I don't know how exactly he put it but it was to that effect."

Regarding claim 11, Complainant applied for the position of Warfighter and Family Readiness Director, GS-0101-13. Following the closing of the vacancy announcement, a certificate of eligible consisted of 27 candidates, including Complainant, and was referred to the Chief, also the selecting official. Complainant was considered qualified for the subject position and was referred to the Chief for consideration. The Chief stated that he selected the supervisor for the subject position "under the 30% or more disabled veteran program."

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To prove her harassment claim, Complainant must establish 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 conduct was taken because of her protected bases -- in this case, sex and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her sex and prior protected activity.

Therefore, after a review of the record in its entirety, including consideration of all statements 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 (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

July 19, 2016

__________________

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 Claims 6 - 12 were later amended to the instant formal complaint.

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