EEOC Appeal No. 0120140624
05-21-2015
Complainant v. Dep't of Def.
Complainant
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Appeal No. 0120140624
Agency No. DOD-DISA-12-005
DECISION
Complainant timely filed an appeal from the Agency's 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
The issues presented are: 1) whether the comments made by Complainant's supervisors about her EEO activity constituted a per se violation of Title VII; and 2) whether Complainant established that the Agency subjected her to hostile work environment harassment based upon her disability and reprisal for her protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-12, at the Agency's Policy, Compliance, and Governance Division, Office of the Chief of Information Officer (OCIO), in Fort Mead, Maryland. Report of Investigation (ROI), at 2. The Agency's Branch Chief, GS-14, served as Complainant's first-level supervisor (S1) and the Division Chief served as Complainant's second-level supervisor (S2). Complainant was also supervised by the Supervisory Telecommunications Specialist (STS).
Complainant has a medical condition related to nerve damage in her left leg, back, and spine due to surgery she had several years prior. Id. at 3. To diminish pain, Complainant receives steroid injections in her tailbone, left hip, or spinal cord every four to six months depending on the origin of the pain. Id. at 111. On July, 21, 2011, upon leaving work, Complainant also apparently slipped on the facility's freshly waxed floor, injuring her shoulder, elbow, head, and knee. Id. at 538. Complainant was forced to go to the emergency room due to her fall and took sick leave for multiple days to recover. Id. at 120. Complainant thereafter filled out Form CA-1 in order to file a Worker's Compensation claim for her on-the-job injury. Thereafter, the STS forwarded Complainant's request to complete Form CA-1 to S1 on July 27, 2011. Id. S1 submitted Form CA-1 on August 3, 2011. Id. at 538-39. Complainant maintained that S1 intentionally delayed the submission of Form CA-1, which affected her ability to receive medical care. Id.
On July 29, 2011, while Complainant was on leave recovering from her fall, management distributed a seating chart. Id. at 541. Complainant felt the seating chart separated her from other employees in her branch. Id. Complainant believed that some employees were allowed to sit with their friends while she was placed in a cubicle in front of the interns. Id. at 124.
Complainant returned to work on August 1, 2011, and according to Complainant, the STS commented to her during a team special project meeting, "I do not care about your disabilities, mission first." Id. at 3. However, a coworker (C1) who witnessed their conversation averred that she (C1) did not recall the STS saying that he did not care about Complainant's disabilities. Id. at 514-15. The STS also commented, according to Complainant, that he removed her from the team special project because she might meet minimal standards due to her doctor's appointments. Id. at 3. Complainant says that she asked the STS to clarify his statement, but he said, "I know where you are going with this and I am done talking to you." Id. Complainant says that she walked in the room where the team was sitting and he also said, "Go, I am done with you, just go!" Id. Although Complainant left the team special project, C1 averred that Complainant returned and performed her duties just "[t]wo or three days later." Id. at 515.
Complainant also believed that, as of August 1, 2011, management required her to perform menial assignments not commensurate with her qualifications, grade, or position description. Id. at 543. Shortly thereafter, Complainant contacted the Agency EEO Counselor on August 5, 2011, and was interviewed on August 11, 2011. Id. at 8. Later, on September 26, 2011, S1 reportedly questioned Complainant about her EEO activity in front of other coworkers in an unfriendly manner. Id. at 534. S1 however denied verbally reprimanding Complainant, but acknowledged that she approached Complainant in her cubicle and also left a voicemail message for Complainant about her EEO activity. Id. at 278. The following day, S1 and S2 met with Complainant and questioned her about her EEO contact. Id. at 304. S2 averred that shortly after they learned of Complainant's EEO activity they approached Complainant, telling her that she could have come to them first instead of the EEO Counselor. Id. S2 speculated that Complainant could have felt intimated during their conversation about her EEO activity because both he and S1 were in the room. Id. S2 specifically averred:
I felt it was job as a Division Chief to make it clear to [Complainant] that it's okay to try to resolve all issues using her chain of command before going to the EEO. . . . I was disappointed that I was not given a chance to help resolve any issues that may been presented.
Id.
S2 further averred that S1 said to him that she (S1) may have made a mistake in talking to Complainant about her EEO complaint because the adjoining cubicle may not have been empty. Id. at 303-304.
Subsequently, on October 25, 2011, S1 required that Complainant take sick leave in lieu of annual leave because Complainant failed to give three days advanced notice in accordance with policy. Id. at 131-32. According to Complainant, S1 previously approved her same-day request for annual leave on September 8 and 9, 2011, without the three-day advance notice requirement. Id.
Complainant also averred that, during a meeting in January 2012, S1 failed to intervene and stop the Records Officer from yelling at her and calling her a liar. Id. at 119-20. Complainant additionally averred that on three occasions S1 informed her that if she did not like performing her menial work, she should find another job, and offered to help her look. Id. at 224.
On December 5, 2011, Complainant filed an EEO complaint alleging, as amended, that the Agency subjected her to hostile work environment harassment on the bases of disability and reprisal for prior protected EEO activity when:
1. In June 2011, the STS belittled and ridiculed her in front of her coworkers and peers;
2. On or around August 1, 2011, the STS removed her from a project and dismissed their conversation;
3. In August 2011, S1 delayed the processing of her Worker's Compensation claim for over two weeks, causing a delay in her benefits;
4. On or around August 1, 2011, after a restructuring of the organization, she found that her work area (cubicle) was physically isolated from her coworkers;
5. Starting on or around August 1, 2011, S1 would not assign her any duties commensurate with her grade, series, or ability and was provided little or no guidance by S1 and S2 with respect to her duties;
6. She was verbally reprimanded by S1 in front of her coworkers for filing an informal EEO complaint;
7. She was "confronted" by S1 and S2 about filing an EEO complaint;
8. S1 forced her to take sick leave in lieu of annual leave based on a three-day advance notice policy for requesting annual leave;
9. On January 1, 2012, during a Records Management meeting, the Records Officer accused her in a demeaning and unprofessional manner of not completing assigned tasks, in front of S1 who allowed the harassment to take place unaddressed; and
10. On February 8, 2012, she attended a meeting to discuss her assignment of duties and was told by S1, "If you do not like it, you can look for another job."1
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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded in its decision that Complainant failed to prove that she was subjected to discrimination as alleged.
Specifically, with regard to claims 1 and 2, the Agency noted that the STS did not recall making any comment about Complainant's disabilities. The Agency also noted that a coworker overheard the conversation between Complainant and the STS, but did not recall the STS commenting about Complainant's disabilities. The Agency indicated that the STS did feel that Complainant was showing minimal effort and had not participated in a morning meeting. The Agency also stated that the STS was merely the team leader and did not have the authority to remove Complainant from the project. The Agency noted that, even assuming the STS made the comments as Complainant alleges, they were isolated comments that did not substantially change the conditions of Complainant's employment. The Agency additionally noted, with regard to claim 3, that there was no evidence that S1 purposefully delayed Complainant's worker's compensation claim. With regard to claim 4, the Agency noted that the change in seating arrangements for Complainant only amounted to her moving a few feet to a virtually identical cubicle in the same office space. The Agency noted, with respect to claim 5, that there was no evidence that Complainant was deliberately given unsatisfactory assignments based on reprisal. The Agency made note that Complainant claimed she was given unsatisfactory assignments beginning on August 1, 2011, but S1 did not learn of Complainant's EEO activity until September 23, 2011. As for claims 6 and 7, the Agency noted that both S1 and S2 denied speaking to Complainant in a hostile tone, but commented that they would have appreciated the opportunity to deal with the instant matters before Complainant contacted the EEO office. The Agency further noted, regarding claim 8, that S1 explained to all employees of the requirement to give two or three days notice for requests for annual leave. Lastly, with regard to claims 9 and 10, the Agency noted that these matters did not significantly change the conditions of Complainant's employment, and therefore did not amount to discrimination.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal. The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Per Se Reprisal (Claims 6-7)
Initially, we note that, upon learning that Complainant had contacted an EEO counselor, S1 left a voicemail message for Complainant concerning her contact with the EEO office. Id. at 278. S1 also approached Complainant alone when learning of her EEO contact. S1 specifically averred:
I did approach [Complainant] . . . . I do not recall anyone else being around. I was shocked and taken back. I told [Complainant] that I received a phone call from EEO and I wished she had come to me so that we could talk about it. I felt like I was not given any courtesy to address the issue with her.
Id.
The next day, S1 and S2 also together both confronted Complainant about her EEO activity. Therein, S2 also expressed to Complainant that she should have come to them first before going to the EEO counselor. As noted above, S2 speculated that Complainant could have felt intimidated during their conversation about her EEO activity.
We have held that the actions of a supervisor are per se discrimination based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO complaint process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.; Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).
In the instant case, we find that S1 and S2's comments were reasonably likely to deter Complainant from engaging in the EEO process. We note that S1 admitted to S2 that she (S1) may have made a mistake in talking to Complainant about her EEO contact. Further, S2 averred as to his disappointment with Complainant's EEO Counselor contact. See Beckham v. Dep't of Treasury, EEOC Appeal No. 0120112323 (May 22, 2013) (per se violation found were supervisor told complainant that she was sad that complainant filed an EEO complaint). Accordingly, we find that the Agency has committed a per se violation of the anti-reprisal provision of Title VII.
Hostile Work Environment Harassment (Claims 1-5, 8-10)2
In order to establish a claim of harassment, Complainant first must show that she is a member of a protected group; here, that she is an individual with a disability within the meaning of the Rehabilitation Act, and/or that she engaged in protected EEO activity prior to or contemporaneously with the incidents about which she complains. Complainant must then show that she was subjected to unwelcome conduct; that the conduct of which she complains was based on her disability and/or her protected EEO activity; that 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 that there is a basis for imputing liability to the Agency. See Flowers v. Southern Reg'l Physician Serv Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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 (Mar. 8, 1994).
Complainant did engage in protected EEO activity of which S1 and S2 were aware, as noted above. For purposes of our analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.3 We find, however, that she has not established that the incidents of which she complains were sufficiently severe or pervasive to establish a hostile work environment.
In the instant case, we note the absence of any testimony in the record corroborating Complainant's allegation that management made comments concerning her asserted disability. Further, although Complainant alleged that S1 delayed the processing of her worker's compensation claim, the Functional Supervisor averred that, after he informed S1 and S2 of the delay, the necessary forms were completed the next day. ROI, at 521. Also, another coworker averred that S1 required her to provide three days advance notice before taking leave as well. Id. at 436. Additionally, while Complainant alleged that she was made to work menial assignments, S2 averred that unfortunately, most of the work available in the division only involved administrative tasks.4 We note that Complainant alleged that she was not assigned duties commensurate with her grade, series, or ability beginning on August 1, 2011, before her August 5, 2011, EEO contact. Also, while the STS may have raised his voice at Complainant and suggested that she leave the team special project, the record reflects that after leaving the project, Complainant returned just days later. Id. at 515. While Complainant's work environment may not have been ideal, we do not find that the Agency's actions were sufficiently severe or pervasive to unreasonably interfere with Complainant's work performance. We note that the laws enforced by the Commission are not a general civility code. Rather, they forbid "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
Therefore, we find that Complainant has not established that she was subjected to retaliatory harassment on the basis of disability or reprisal. See Webster v. Dep't of Defense, Appeal No. 0120080665 (Nov. 4, 2009) (complainant failed to establish a hostile work environment or discriminatory animus although the comments of complainant's supervisor constituted per se reprisal); Kaarup v. Dep't of Transportation, EEOC Appeal No. 0120072592 (July 10, 2009) (retaliation per se found even though Complainant failed to establish a hostile work environment).
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons, we AFFRIM the Agency's final decision, finding no discrimination as to claims 1-5 and 8-10. However, we REVERSE the Agency's final decision regarding claims 6-7 and REMAND this matter to the Agency for further processing in accordance with the ORDER below.
The Agency is ORDERED to take the following action regarding claims 6-7:
1. Within thirty (30) days from the date this decision becomes final, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to claims 6-7. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages. The supplemental investigation and issuance of the final decision shall be completed within sixty (60) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer as referenced below.
2. The Agency is directed to conduct EEO training for the supervisors identified as S1 and S2 above. The training shall address their responsibilities with respect to eliminating discrimination in the Federal workplace with a special focus on the anti-retaliation provisions of the law.
3. The Agency shall consider taking appropriate disciplinary action against S1 and S2. If the Agency decides to take disciplinary action, it shall identify the action taken in its compliance report to EEOC. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline in its compliance report.
4. The Agency shall post a notice in accordance with the paragraph below
The Agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation reflecting that the corrective action addressed above has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Policy, Compliance, and Governance Division, Office of the Chief of Information Officer, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 21, 2015
Date
1 Complainant withdrew a claim related to a non-selection.
2 Although the Agency's final decision analyzed Complainant's case a under a disparate treatment theory, we find the complaint is more appropriately addressed as a claim of hostile work environment harassment.
3 The Agency's final decision did not address whether Complainant was a qualified individual with a disability.
4 As Complainant chose to not request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations. The Commission can only evaluate the facts based on the weight of the evidence presented.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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