0120073204
11-19-2009
Cecelia A. Fields, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Cecelia A. Fields,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120073204
Hearing No. 110-2004-00257X
Agency No. GSAR042003001
DECISION
On July 6, 2007, complainant filed an appeal from the agency's June
6, 2007 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the AJ's rulings that complainant failed to establish
discriminatory harassment and termination, are supported by substantial
evidence.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an employee of Lionel Henderson, Inc. (hereinafter referred to as
LH, Inc.), as a Secretary II at the agency's Public Buildings Service,
Property Management Center in Charleston, South Carolina. On November
19, 2002, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of race (African-American), religion
(Christianity), and color (black) when she was subjected to harassment
from March 2001 until the day she was terminated from her employment
with Lionel Henderson Corporation on May 16, 2002.
At the conclusion of the investigation, complainant was provided 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. The AJ granted the agency's motion for summary
judgment and held that complainant failed to state a claim because she
was a contract employee and not an employee of the agency, and in the
alternative, found that complainant failed to establish a prima facie
case of discrimination based on race, color, and religion, and hostile
work environment harassment. The agency adopted the AJ's ruling.
On April 9, 2003, complainant appealed the decision to the Commission,
arguing that she satisfied the common law test for being an employee of
the agency and that the AJ improperly denied her a hearing. The agency
filed opposition to complainant's appeal. In Fields v. General Services
Administration, EEOC Appeal No. 01A51814 (April 14, 2006), we reversed
the AJ's ruling and held that complainant stated a claim that could be
addressed by the Commission. The case was remanded to the Charlotte
District Office and assigned for hearing. An AJ held a hearing on March
23, 2007 and issued a decision on May 4, 2007.
AJ Decision
The AJ found as follows: complainant alleges that her supervisor
(S1) (Caucasian, white. Christian) subjected her to harassment and
discrimination as soon as she became supervisor. Complainant identified
the following examples: (1) her coworker (C1) was not disciplined for
an AWOL charge, (2) another coworker (C2) was not disciplined for using
the government credit card for personal use, (3) after returning to work
after her lunch break, during which she read her Bible, she heard her
supervisor say "Maybe we can get CeCe to pray for it" and everyone was
laughing, and (4) profanity was used in the work place.1
As to the harassment claim, the AJ found that, taken individually or
together, the allegations of harassment raised by complainant in her
complaint are not severe enough to unreasonably interfere with her
work performance. The AJ noted that complainant never expressed to S1
that she was personally offended by S1's use of the term "Goddamnit."
Additionally, as to S1's assertion that "Maybe we can get CeCe to
pray for it," this was a one-time incident, and not severe enough to
constitute unlawful harassment. The AJ also found that the coworkers who
complainant asserts were not disciplined for their conduct were not proper
comparators. As to the termination claim, the AJ found that assuming
complainant established a prima facie case of race, color, and religion
discrimination; the agency satisfied its burden by presenting evidence
that LH, Inc. terminated complainant's employment after being contacted
by GSA regarding their dissatisfaction with her work. The AJ found that
the agency presented evidence that S1 did not want to continue working
with complainant because of her work performance deficiencies, which she
believed would negatively affect her warrant license, and her negative
attitude.2 The AJ found no evidence of pretext. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant requests a new hearing, arguing among other things,
that although the AJ found that complainant had performance problems
and attitude problems, there is no such evidence. Additionally, she
reiterates her argument that similarly-situated individuals outside her
protected groups were treated more favorably with regards to discipline.
Additionally, she asserts that her journal entries (which are in the
record) clearly show that she was subjected to discrimination.
In reply, the agency contends that the AJ decision was correct, noting
that complainant's comparators are not similarly-situated because
complainant was a contractor, and the coworkers have different job titles
and very different job duties. The agency also asserts that complainant's
journal entries are one-sided and there is no evidence that they were
made contemporaneously with the events described. The agency also lists
numerous examples of complainant's performance deficiencies, as well as
examples of how S1 attempted to assist complainant. The agency notes
that because complainant was a contract employee, the agency did not have
the usual responsibility to maintain documentation of her performance.
The agency contends that complainant has raised no new arguments, and
asks the Commission to affirm the final order.
ANALYSIS AND FINDINGS
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. An AJ's
credibility determination 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, � VI.B. (November 9, 1999).
Hostile Work Environment Harassment
To establish a claim of harassment based on race, color, or religion,
complainant must show that: (1) she is a member of the 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 the 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 to
the employer. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the present case, we find that the alleged harassment, taken
together, is not severe or pervasive enough to be considered unlawful.
In so finding, we note that the record shows that S1's management
style was severe and harsh, and utilized a different approach to much
of the work than what complainant was accustomed. Additionally, the
record shows that S1 often used profanity, and she testified that she
knew this was unprofessional. A harsh and severe approach to managing
employees is not equivalent, however, to discrimination. Accordingly,
the Commission finds that the AJ's finding that discriminatory harassment
was not established, is supported by substantial evidence in the record.
Termination
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Although complainant denies that her attitude and work performance
were deficient and points out that she received positive feedback for
her work, this is inadequate to establish that management's reasons for
terminating her are mere pretexts for discriminatory animus. The record
contains substantial and specific testimony about what management
viewed as complainant's performance deficiencies. The AJ's finding
that discrimination was not proven as to her termination is supported
by substantial evidence in the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
______11/19/09____________
Date
1 Specifically, complainant alleged that on her first day on the job,
S1 did not introduce herself but rather "arrogantly" told complainant
to get her things and move them into the office. On another occasion
when S1 had laryngitis, she used notes on post-its to communicate.
According to complainant, S1 needed to discuss errors with the RWA
(reimbursable work authorization). Since she was unable to talk,
she wrote her responses and then "tossed" them to complainant to read.
Complainant testified that "a couple of times, I had to pick the paper
up from the floor. I felt that was very degrading and unnecessary."
She alleges that S1 yelled at her on several occasions and used profanity
towards her. Specifically, on one occasion, she recalled S1 looking in
the file drawer (away from complainant) and remarking "goddamn, these
files are a mess. Complainant indicated that S1 never apologized for this
"outright disrespect for [her] belief." Complainant admitted, however,
that the statements were not directly to her.
2 S1 admitted discussing work product and performance issues with
complainant. She specifically recalled complainant changing financial
documents without her approval. S1 stated that she repeatedly advised
complainant that she was not authorized to make any changes without
her approval. She further testified that when she began working in
the Charleston offices, the files (maintained by complainant) were
disorganized. S1 indicated that the job was run differently before her
arrival and she believed complainant resented her as her supervisor and,
in fact, "wanted her job." She also stated that complainant did not
respect her as a supervisor and repeatedly questioned her directions.
S1 denied that she asked LH, Inc. to terminate complainant as an employee,
but only wanted complainant removed from her contract.
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0120073204
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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