0120130179
03-18-2015
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120130179
Hearing Nos. 450-2012-0085X, 570-2011-00232X
Agency Nos. 2010-23226-FAA-02, 2011-24018-FAA-02
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 5, 2012, 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. For the following reasons, the Agency's final order fully implementing the Administrative Judge's (AJ) finding of no discrimination and/or harassment is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, G Band at the Agency's Acquisition and Contracts facility in Washington, DC. Complainant maintained that management treated her harshly and unfairly with regard to her work assignments, performance evaluations, and leave. Complainant also maintained that management and coworkers subjected her to a hostile work environment. As such, Complainant filed formal complaints which were consolidated alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when:
A. Complaint Agency No. DOT-2010-23226-FAA-02.
1. She received an inaccurate and poor mid-year evaluation on April 26, 2010;
2. She was given a Letter of Reprimand on March 3, 2010;
3. She was given a Letter of Caution on February 19, 2010 for disrespectful behavior; and
4. She was subjected to a hostile work environment when: a. her supervisor threatened her with AWOL on March 19, 2010; b. From November 2009 to April 30, 2010, she was harassed about her work, beginning with removal of contract files from her office in November 2009; and c. She was subjected to numerous counseling sessions, questions about her work and "punitive" weekly meetings.
B. Complaint Agency No. DOT-2011-24018-FAA-02.
Complainant alleges discrimination and reprisal because of her participation in protected EEO activities when she was allegedly subjected to a hostile work environment by management and coworkers since approximately January 2010 and continuing. Some examples of the hostile work environment include:
1. In January and June 2010, the contracting officer to which she was assigned provided misinformation to her supervisor, and her supervisor refused to hear her account of what happened; she believes that this false information contributed to her Letter of Reprimand, dated March 3, 2010, and her unfair performance evaluation for the rating period ending September 30, 2010.
2. On March 3, 2010, she received a letter of reprimand regarding her alleged delay in carrying out work assignments
3. She received an unfair performance appraisal for the rating period ending September 30, 2010, and was denied an opportunity to provide a written rebuttal;
4. As a result of her unfair performance rating for the period ending September 30, 2010, she was denied a promotion;
5. As a result of her unfair performance rating for the period ending September 30, 2010, she was denied an SCI pay award;
6. From May 2010 until April 2011, she was not given any new work assignments;
7. Between April 2011 and July 2011, she was given four new work assignments that were either impossible or nearly impossible to complete;
8. On April 19, 2011, her supervisor allowed coworkers to make insulting comments during a team meeting;
9. On May 10, 2011, her supervisor embarrassed her in front of her coworkers when he stated during a meeting that he had a work assignment for her and that she should see him after the meeting; and
10. On June 7, 2011, she overheard a coworker say that someone should sit next to her, or else she will file and EEO complaint another coworker responded in agreement and said that she will go to the Civil Rights Office, and then they both laughed.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. On June 6 and 26, 2012, the AJ held a hearing finding that Complainant failed to show that she was subjected to discrimination. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to the Letters of Caution and Reprimand issued to her, and the mid-year evaluations, the Agency explained that Complainant was issued a Letter of Caution to counsel her regarding disrespectful and inappropriate conduct, failure to give truthful information when asked by her supervisor, and the delay in carrying out work assignments. The Agency noted two incidents in which Complainant acted erratically and in a hostile manner with an attorney that reviewed one of her cases and with regard to her supervisor as she was trying to gather information regarding the incident. On March 3, 2010, Complainant was issued a Letter of Reprimand for delay in carrying out work assignments. Specifically, Complainant was given an assignment with a February 25, 2010, due date but she did not complete it and provide it to her supervisor until March 15, 2010. Complainant had also been previously counseled about late payments on invoices.
With respect to the weekly meetings, management maintained that the meetings were scheduled to keep Complainant on track with respect to handling her case load as many of her assignments were untimely. The meetings were also used so that Complainant could discuss any problems she was having with her supervisor and ask questions. Management indicated that a total of seven meetings were scheduled but Complainant called in sick for three of the seven meetings. Further, with respect to Complainant's leave, management explained that on March 15, 2010, Complainant left work on sick leave and remained on sick leave until March 24, 2010. Complainant's supervisor requested that Complainant provide a physician's note for her absence and when the note provided was illegible, a second request was made for a note. Management maintains that Complainant was never threatened with AWOL but was told she could be charged with leave without pay if she did not provide the requested medical documentation.
Further, with regard to Complainant's performance appraisals management noted that Complainant was told that her performance was at a very elementary level, was often not timely, and that she had difficulty interacting with others. The New Branch Manager assigned Complainant to a new supervisory team and within one month problems with Complainant's work was noted. It was noted that Complainant did not take initiative on her contracts, failed to move on her own, and failed to take responsibility for her actions. These deficiencies were noted on Complainant's year-end performance appraisal. The AJ found that Complainant failed to demonstrate that that articulated reasons were pretext for discrimination.
With regard to Complainant's hostile work environment claims where she alleged that she was threatened with AWOL, harassed about her work, had work removed from her, and was subjected to punitive counseling sessions and meetings, Management explained that Complainant was not threatened with AWOL, but was informed that if she did not provide medical documentation her leave could be charged as leave without pay. Further, with regard to Complainant's work performance, management indicated that Complainant was clearly having difficulty completing her work, and completing it timely. Additionally, the record reflects that Complainant's supervisor assigned work on two of Complainant's contracts while Complainant was on leave but she retained the contracts. The AJ found that all of the incidences that Complainant complained of where normal interactions between a supervisor and an employee and were not severe or pervasive enough to establish a hostile work environment. The AJ also found that the incidents regarding Complainant's coworkers where she overheard a comment and where they did not pass the sign-in sheet to Complainant were not severe or pervasive enough to establish a hostile work environment. Thus, the AJ found that Complainant failed to demonstrate that she was subjected to discrimination and/or a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, among other things, that the AJ erred in finding that she was not subjected to discrimination. Complainant maintains that her supervisor did not treat the white employees in the same manner that she was treated. She maintains they were not questioned or talked to in a hostile manner like she was. Complainant also contends that prior to filing an EEO complaint she received good appraisals, had excellent relationships with clients, and did not have a problem with management. She asserts that the Agency retaliated against her when it issued her an inaccurate mid-year evaluation, Letter of Caution, and Letter of Reprimand. Moreover, she states that the Agency misrepresented many facts that are in the record like, when the memo was missing from her file, management acted in a hostile manner towards her demanding immediate responses to their questions. She maintains that this caused her a great deal of anxiety and concern. She also maintains that management was aware that one of her assignments was going to be late because she had sent an email regarding the matter. Complainant argues that based on her work product she should have been promoted to an H band and should have received a monetary award as she did the previous year.
In response, the Agency asserts, among other things, that Complainant failed to show that the AJ's decision was not supported by substantial evidence. The Agency maintains that Complainant re-argues her entire case as it relates to Complainant's Letters of Reprimand and Caution and performance appraisal but fails to offer any evidence as to how the AJ's conclusions were not supported by substantial evidence. Therefore, the Agency argues that her appeal should be denied.
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, at � VI.B. (November 9, 1999).
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. Like the AJ, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal and race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to demonstrate that the Agency's reasons were pretext for discrimination.
We also find that Complainant's contention employees outside of her protected bases where treated more favorably than her is not supported by the record. Complainant failed to show that these employees had the same work deficiencies as she demonstrated. We note, that Complainant does not deny that there were problems with her work performance. She recounts how that she performed in the past but did not address her current performance. We find that Complainant has provided no evidence which suggests that discriminatory animus played a role here.
Further, we also agree with the AJ regarding the denial of Complainant's hostile work environment claim. We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Accordingly, we find that the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. The Agency's final order which found Complainant failed to demonstrate that she was subjected to discrimination and/or hostile work environment is AFFIRMED.
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
___3/18/15_______________
Date
2
0120130179
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130179