0120100921
09-18-2012
Carolyn Riddick, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Carolyn Riddick,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100921
Hearing Nos. 430-2006-00225X, 430-2007-00420X
Agency No. 06-4338A-0003, 07-4338A-00534
DECISION
On December 17, 2009, Complainant filed an appeal from the Agency's December 1, 2009, final order concerning her equal employment opportunity (EEO) complaints 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to prove that she was discriminated against as alleged.
ISSUE PRESENTED
The issue presented in this case is whether there is substantial evidence to support the findings of an EEOC Administrative Judge that Complainant was not discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Inventory Management Specialist, GS-09 at the Agency's Pack-Up Management Branch, Aviation Support Division (ASD) facility in Norfolk, Virginia. The record reveals that the facility was known as a problem location as there were organizational concerns, as well as, leadership and management problems. The facility was scheduled for an inspection in December 2005. Due to the impending inspection, the facility was assigned a new Commander to serve as the Officer in Charge (OIC) of the ASD. The OIC had a reputation for fixing problem facilities.
Prior to arriving at the facility, the OIC requested a Supply Management Assessment (SMA), which was conducted by five veteran investigators. The OIC was informed that there was a "huge inventory problem," and a "huge leadership and management problem." The biggest problems were specifically attributed to the Repairables Management Branch and the Pack-Up Unit. Therefore, upon his arrival in March 2005, the OIC started out by making major changes in the unit which included replacing supervisors and bringing in military help.
There was an additional SMA conducted in July which showed that the inventory problem had still not been fixed. Thereafter, the OIC was personally cautioned by the chief inspector that the ASD had the reputation as the worst ASD in the fleet. The OIC requested an extension of time to straighten things out but his request was denied. An inspection was scheduled for December 5, 2005. In order to reach this goal, the OIC made major changes at the ASD. These changes included: removing supervisors from their normal positions and placing them in positions that they had not previously worked; denying leave; reprimanding supervisors; and requiring that supervisors hold their employees accountable.
The ASD supervisors maintained, however, that the facilities condition was caused by the Agency's faulty computer system which was ultimately changed. The supervisors asserted that they had all received outstanding evaluations prior to the arrival of the OIC. After his arrival, the tone of the office changed. The supervisors indicated that the OIC would hit the wall and slam things down on the table using the "F" word and stating the, managers, who were all female, were "F'ing liars." It was felt that his conduct was very intimidating and threatening. Complainant contended that the OIC constantly said that he wanted "new blood or young blood" and he needed to get rid of some of those individuals that had "been there forever." Complainant indicated that it was quite evident that the OIC believed he needed younger people and began a course of getting rid of the veteran performers and replacing them with younger military members.
The facility passed the December 2005 inspection, and the OIC was formally recognized for his efforts.
Complainant filed EEO complaints alleging that the Agency discriminated against her as indicated below:
A. Complaint DON-06-4338A-00003
1. On October 17, 2005, based on reprisal, her leave (previously approved for October 24, 2005) and her attendance at a Retirement Seminar (previously approved) were canceled and on October 31, 2005, she received a Letter of Instruction/Letter of Verbal Admonishment for deficiencies in the execution of her duties.
2. She was subjected to discrimination based on her race (Caucasian), sex (female), age (62) when she was subjected to a hostile work environment since 2005 when the following occurred:
(1) October 7, 2005, her leave was denied even though a liberal leave policy was in
effect;
(2) On October 5, 2005, the OIC revoked the Alternative Work Schedule (AWS), changed the working hours to 0700-1530 and imposed leave restrictions for the months of November and December;
(3) On September 29, 2005, during an All Hands Meeting, the OIC said, "You will be 100% loyal to me and if you try to block me, I will make you go away;"
(4) On September 28, 2005, as a result of the OIC reassignment of her first line supervisor Complainant now reports directly to the deputy, who uses the "F word" which she finds offensive;
(5) In August 2005, the OIC said, ''This is my fucking command and you will pass the fucking inspection or you will fail your evaluations."
(6) The OIC and his deputy treated Complainant in a hostile manner, constantly imposing unrealistic deadlines, and changed the format to which her tasks were to be submitted;
(7) She was subjected to reprisal and further harassment when her office was relocated without her prior knowledge; and
(8) She was issued a Letter of Instruction on January 11, 2006, and on March 20, 2006, and she was also issued a job performance counseling letter.
B. Complaint DON-Q7-4338A-00534
Was Complainant discriminated against by the Agency on the bases of race (Caucasian), sex (female), age (62), and reprisal (prior EEO activity) when:
1. On January 9, 2007, she received a Letter of Reprimand for failure to appropriately exercise supervisory responsibility and authority and failure to follow the instructions of her supervisor;
2. On February 12, 2007, she was issued a Notice of Unacceptable Performance, which was subsequently cancelled on February 16, 2007, and reissued on February 23, 2007; and
3. On April 20, 2007, she was issued a Letter of Caution for negligence in the performance of official duties.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 2 and 3, 2009, and issued a decision on October 28, 2009.1
With regard to the issues of cancelled leave, canceled alternative work schedules and changed work hours, the Agency indicated that Complainant's leave was cancelled because she was needed to perform her duties in preparation for the upcoming inspection. This applied to all members of ASD.
With respect to issue no. 2(3), where during an all hands meeting, the OIC announced that "You will be 100% loyal to me and if you try to block me, I will make you go away," the OIC stated that he was using a sports analogy and that he only meant that he would bench the staff and that it was not a threat to fire anyone. With regard to issues nos. 2(4) and 2(5), the Agency acknowledged the OIC frequently used the "F word" but it also noted that he made attempts to refrain from its use. The OIC also admitted to using the term with his upper management staff.
With regard to issue no. 2(6), that Complainant was given unrealistic deadlines and changed the format, the OIC denied that the expectations were unreasonable. The OIC denied treating Complainant with hostility but admitted that his actions may have been considered stressful to her. Further, with regard to issue no. 2(7), the OIC explained that Complainant's office was relocated to the work floor "since one of the big issues with Complainant was her not exercising command and control of her staff, and the OIC thought that if she was in full view of all of her "folks," she would have a little more command and control over her team.
Finally, the Agency explained that Complainant was issued a Letter of Instruction on January 11, 2006, and on March 20, 2006, and was issued a Job Performance Counseling letter because she failed to properly counsel an employee that hastily left a staff meeting. In her counseling letter to the employee, Complainant identified the Deputy as the reason that she was issuing the counseling letter. Complainant was told that she did not have to identify the Deputy and was reminded that she had to support employee discipline. Complainant was cited again after she was ordered to discipline an employee for insubordination, which was against her wishes, after he threw a discovered part on her desk and used profanity.
Further, with regard to issue no. B(1), wherein Complainant was issued a Letter of Reprimand, the Agency indicated that on January 9, 2007, Complainant was issued a Letter of Reprimand after it was discovered that a $2.2 million dollar Hub Assembly was missing on Complainant's watch. New procedures were put in place to assure that this would not occur again. Management thereafter overheard Complainant agreeing with her disgruntled employees that the new procedures would only complicate things. Therefore she was reprimanded because management believed that Complainant was showing contempt for the chain of command.
With regard to issue no. B(2), where on February 12, 2007, Complainant was issued a Notice of Unacceptable Performance, which was cancelled and then reissued, the Agency again offered a legitimate, nondiscriminatory reason for its action, namely that Complainant was issued a Notice of Unacceptable Performance because she displayed unacceptable performance in the areas of Personnel Management and the Operation of the Section and Exercises Technical and Administrative Control of All Phases of the Section's Functions. Complainant was placed on a Performance Improvement Plan (PIP).
Regarding issue no. B(3), where on April 20, 2007, Complainant was issued a Letter of Caution for negligence in the performance of official duties, the Agency explained that the letter related back to the lost $2.2 million dollar item referenced in issue B (1). Management explained that Complainant should have followed proper inventory procedures. Management indicated that letter was issued to Complainant instead of the involved manager because it was Complainant's responsibility to ensure that the managers did their job. The involved manager was later suspended for her participation in the loss.
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management explained that the OIC was detailed to the ASD in order to prepare it for a successful inspection. Upon his arrival, he was disappointed with the staff and especially the managers' seeming inability to manage their staff. The AJ found that it was clear from his testimony that the OIC found Complainant's management style an intolerable disappointment. The OIC, along with his subordinate managers, acted in a very aggressive manner in attempts to secure the successful passing of the inspection. In addition, as he reviewed each office, the OIC became aware of supervisor styles and lack of management that he deemed unacceptable. Unfortunately for Complainant, he deemed her management style as unacceptable. Moreover, he did not view her as a team player based on her failure to support him and his management style in front of her subordinates. The AJ determined that perhaps the OIC's military background propelled his aggressiveness, but, nonetheless, the AJ found that the evidence supported that his actions were for the purpose of a successful work product. Further, his intolerance for what he deemed sub-par supervision resulted in his decisions to replace supervisors (including Complainant) and reassign others. The AJ found that the Agency's burden had been met.
With regard to pretext, the AJ noted that Complainant argued that the OIC sought to rid the ASD of all Caucasian female managers more than 40 years of age. She presented evidence that supervisors were reassigned and forced to work differently than before the arrival of the OIC. The AJ found, however, that Complainant did not proffer any evidence that the Agency's actions were because of her membership in the protected groups. Rather, the evidence supported the Agency's argument that the OIC was assigned to ''fix'' the ASD which, in his opinion, meant challenging its managers and encouraging (albeit rudely and possibly in an over aggressive manner). The AJ also found that Complainant failed to proffer persuasive evidence to refute that the OIC's actions were based on his intolerance to her management style. After a careful review, the AJ determined that the record evidence did not support a finding of pretext.
With regard to Complainant's harassment claim, the AJ found that the evidence supported that Complainant's work environment changed drastically upon the arrival of the OIC. Complainant's work area had "problems" - whether created or not by the unit - the OIC was charged with fixing the problem by any means necessary (although there is no evidence that any of his means were discriminatory but they were indeed unfavorable to present employees). The OIC arrived with a no-nonsense attitude dedicated to passing the upcoming inspection. The evidence (his own testimony) supports that he created a highly stressful and uncomfortable work atmosphere as evidenced by retirements, reassignments, and complaints. However, there was no evidence that this creation was built upon discriminatory reasons. Rather, the AJ found that the OIC's credible testimony, reflected the work ethic of enlisted personnel - somewhat contrary to what Complainant (and her civilian staff) had become accustomed to in the past, it was particularly noteworthy to the AJ that no one, including Complainant, denied that there were serious problems in ASD prior to the OIC's arrival.
Additionally, the AJ noted that the most compelling statement offered by Complainant was her claim, which was not introduced prior to trial, that she was introduced as "the one who filed an EEO." The AJ found that while this would certainly be a prelude to a reprisal claim, Complainant testified that "maybe I just thought about it." As such, the AJ found that this statement was not credible. The AJ acknowledged that Complainant and the other supervisors were subjected to a harsh work ethic that they were not familiar with. The AJ found however, that Complainant failed to prove that the OIC's behavior was based on her protected groups. The AJ found that Complainant failed to prove her case. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains the AJ failed to take into consideration that the OIC told others that a young female navy Chief had been brought in to remove two of the older supervisors. Complainant noted that the environment was so hostile that one supervisor quit after 25 years of federal service and another older female failed to return after the OIC continuously yelled at her. A third supervisor transferred to another facility to escape the OIC. Complainant contends that two of the supervisors were replaced by males. Complainant's notes that the male workers were not treated as severely as the female workers. Complainant maintains that contrary to the Administrative Judge's findings in this case, it was not a matter of the OIC just being a difficult, demanding and harsh supervisor, he was abusive and targeted his abuse to older white women.
Further, Complainant maintained that the AJ erred when she failed to consider the OIC's statements that he was getting rid of the deadwood and was getting younger blood. Complainant argues that the AJ ignored these unrebutted statements which were repeated by several different credible witnesses. Complainant also stated that another flaw in the AJ's reasoning was that the hostile work environment continued even after the inspection had taken place. Moreover, Complainant maintains that the OIC's disregard for the truth ran rampant throughout his entire testimony. Complainant contends that the AJ erred when she failed to find that he was not a credible witness. For example, Complainant asserts that he lied about the computer system being in working order, and he also contradicted all of the witnesses concerning his volatile behavior.
In response, the Agency maintains that the AJ correctly found that Complainant failed to show that she was subjected to discrimination. The Agency requests that its final order be affirmed.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
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 final agency order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
With respect to Complainant's contentions on appeal, the Commission finds that Complainant has not shown that the AJ erred in not finding the Agency's reasons were pretext for discrimination. As established above, the OIC was dissatisfied with the management style of those in place at ASD. He brought with him a military style that was hostile toward all who worked at the facility. With regard to Complainant's argument that the hostile work environment continued after the inspection, the Commission notes that the OIC appeared to be particularly disturbed by Complainant's approach to management and, he continued to take actions against her after the inspection because of this reason. While we find that the OIC's behavior was harsh and was clearly volatile, the record simply does not show that it was only directed at older white women, as the record shows that men were yelled at, and were subject to discipline, also. For the most part, these incidents represent everyday workplace interactions, which include professional disagreements, differences in management styles, and personality conflicts, not discriminatory conduct.
Finally, with regard to Complainant's contention that the AJ erred in finding the testimony of the OIC credible, we note that an AJ's credibility determinations based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
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
__9/18/12________________
Date
1 On November 17, 2007, the Agency implemented an Administrative Judge's summary judgment, dated September 19, 2007, finding no discrimination. On April 14, 2008, the Equal Employment Opportunity Commission, Office of Federal Operations, reversed this decision and remanded the complaints for a hearing. This appeal is the subject of that ordered hearing.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100921
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120100921