Colleen M.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 11, 2017
0120152306 (E.E.O.C. Jul. 11, 2017)

0120152306

07-11-2017

Colleen M.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Colleen M.,1

Complainant,

v.

Dr. Heather A. Wilson,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120152306

Hearing No. 410-2014-00273X

Agency No. 6R0M11016

DECISION

On June 26, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 28, 2015, final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist at the Agency's 94th Contracting Flight facility in Dobbins Air Reserve Base, Georgia.

On February 29, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (Caucasian), color (white) and reprisal under a statute that was unidentified in the record when:

1. In July 2011, a coworker (CW1: African American, brown) subjected Complainant to harassment and management failed to discipline CW1 after Complainant complained.

Complainant also raised additional claims but the Agency dismissed all claims on May 15, 2012 and Complainant appealed to this Commission. In a decision dated January 8, 2014, the Commission affirmed the dismissal in part and reversed in part and remanded the harassment claim to the Agency for an investigation and a decision on the merits. See Complainant v. Department of the Air Force, EEOC Appeal No. 0120122673. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that the request was untimely.

The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that the claimed incidents of harassment never occurred, and that, even assuming they did, Complainant failed to show that they were based on her race, color, or in reprisal for prior EEO activity. Furthermore, the Agency found, management promptly investigated the incidents and no other claimed acts of harassment subsequently occurred.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the 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").

Complainant alleges the following incidents occurred:

1. On July 5, 2011, CW1 screamed and yelled at Complainant;

2. On or about July 21, 2011, CW1 allegedly physically struck Complainant by pushing her and elbowing her in the side;

3. On July2 26, 2011, CW1 physically attacked Complainant by pushing, elbowing and hitting her in a conference room where most of the employees of her office had been assembled for training purposes; and

4. Beginning on or about July 27, 2011, the Agency failed to discipline CW1 for striking Complainant.

In her affidavit, CW1 denied all of Complainant's claims. Complainant's Supervisor (S1: African American, brown) averred that, with regard to the July 5 incident, his office was located fifteen feet from the area and he had no recollection of CW1 screaming at Complainant. Complainant's second-level Supervisor (S2: Caucasian, white) similarly averred that, with regard to the July 5 incident, his office was twenty feet from the work area and he heard no yelling and screaming, nor did any employees report hearing any yelling and screaming. With regard to the July 21 incident, a coworker (CW2: Black, brown) who was present averred that she saw no physical or verbal altercation between Complainant and CW1. With regard to the July 26 incident, two coworkers (CW3: White, white & CW4: White, white) who were present in the conference room both averred that CW1 did not strike Complainant. CW4 further averred that she saw and heard the entire conversation between Complainant and CW1. Complainant has not provided any witnesses to confirm her version of events. Based on the absence of any corroboration of Complainant's version of events, and given the evidence corroborating CW1's version of events, the Agency concluded that the alleged incidents did not occur. Following a review of the record we agree that Complainant has not shown that the claimed acts of harassment occurred. We find it implausible that a coworker could scream at, push, and elbow another employee in an office and a conference room with others present and yet nobody else heard or saw anything.

Even assuming the incidents occurred as described by Complainant, we note that when considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

Based on the above, we note that Complainant has not shown that any of the alleged actions, assuming they occurred at all, were either based on, or involved, her race, color, or prior protected EEO activity. Finally, we note that, with regard to the allegation that the Agency failed to act after Complainant complained, the record shows that management promptly investigated the incidents once Complainant brought them to management's attention. While CW1 was not disciplined because management concluded Complainant's claims were unproven, Complainant does not allege any additional acts of harassment after she complained to management. Accordingly management acted appropriately and hence there is no basis for imputing liability to the employer.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown discrimination occurred and we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 11, 2017

__________________

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 Certain portions of the record, including the AJ's Decision, indicate that there was an additional incident on June 26, 2011. Following a thorough review of the record, including Complainant's Formal and informal complaints, her affidavit, and the affidavits of others, we find that the June 26 and July 26 incidents were the same and the correct date is July 26, 2011.

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