0120132597
09-03-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120132597
Agency No. AREUBAUM12MAR1045
DECISION
On July 1, 2013, Complainant filed an appeal from the Agency's May 22, 2013, final decision (FAD) 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator Supervisor at the Agency's United States Army Garrison facility in Baumholder, Germany.
On April 26, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On January 22, 20101, Complainant's second level supervisor (S2: white, male) told Complainant "It wouldn't be in your best interest" when Complainant informed him that she had decided to go formal with her complaint;
2. Between June 2011 and May, 2012, Complainant was subjected to harassment; and
3. On March 8, 2012, Complainant learned that S2 had not sent Complainant's name forward for consideration by the selection panel in July 2011, resulting in Complainant not being selected for the position of Supervisory Postmaster, GS-0301-11, under Announcement #EUJD11958597461242, with the Agency Directorate of Human Resources;
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). In accordance with Complainant's request, 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. The Agency characterized the claims differently, listing each of the instances of harassment as individual claims. The Agency found that, with regard to S2's comment about Complainant not pursuing her EEO complaint, "the discussions that take place in mediation are confidential and are inappropriate for use in a subsequent EEO complaint." With regard to Complainant's harassment claim, the Agency found that the actions complained of were insufficiently severe or pervasive to constitute harassment. With regard to the nonselection, the Agency found that S2 articulated a legitimate nondiscriminatory reason for his action when he said he believed Complainant was "not yet prepared to be Postmaster" and that Complainant failed to establish that she was more qualified than the selectee. From this decision, Complainant appeals.
ANALYSIS AND FINDINGS
We note initially that the Agency's request to dismiss the appeal because Complainant failed to timely serve the Agency with a copy of her appeal is denied. 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").
Interference With the EEO Process
Pursuant to 29 C.F.R. � 1614.101(b), it is unlawful for any person to be subject to retaliation for opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., or for participating in any stage of administrative or judicial proceedings under those status. A review of the statute itself, from which our regulations are promulgated, reveals that section 2000e-3(a) of Title VII prohibits retaliation against a worker for engaging in protected activity.
While we note that in its FAD, the Agency at one point describes S2's statement to Complainant that "it wouldn't be in your best interest" to file an EEO complaint as having been made after mediation, the record reveals that both Complainant and S2 averred that the comments were made during mediation. See Report of Investigation (ROI), Deposition Transcript (DT), pp. 14, 67. The Commission has consistently held that comments and actions made during mediation sessions fail to state a proper claim of employment discrimination. See Oliver v. United States Postal Service, EEOC Appeal No. 01A24752 (October 3, 2001); Nelson v. Department of Defense (Defense Contract Audit Agency), EEOC Appeal No. 01A13907 (Sept. 25, 2001) (comments and actions made during a mediation session akin to actions during settlement negotiation). The Commission recognizes confidentiality as one of the core principles of alternative dispute resolution (ADR), and finds that "[p]arties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), 3-16 (November 9, 1999). Without the maintenance of confidentiality, there would be a chilling effect on the utilization and success of ADR. Id. Because the record establishes that the comments were made during mediation and not after it, we find that Complainant fails to state a claim.
Nonselection
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is the complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination when she was not selected for the position. The Agency articulated a legitimate nondiscriminatory reason for its action when S2 averred that the reason he did not forward Complainant's name for consideration for the supervisory postmaster position by the selection panel, resulting in Complainant's nonselection for the position, was because he felt "she needed further development as a supervisory postmaster . . . or further development in supervisory duties in order to be successful." ROI, DT, p. 70. S2 further averred that budget constraints at the time prevented the Agency from hiring new people and he didn't want Complainant to have the Supervisory Postmaster position because "then we would be one down for a long period of time, because her position that she was leaving would be then vacant." Id., p. 71. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish that the Agency's reason is pretextual, or otherwise show that the Agency's actions were motivated by discrimination or reprisal. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53.
Following a review of the record we find that Complainant has not met this burden. We note that the Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that her qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant, by admitting that she did not know the qualifications of the selectee for the Supervisory Postmaster position, see ROI, DT p. 23, has failed to make this showing. While Complainant disagrees with S2's opinion that she needed more supervisory experience, she has not met her burden of establishing, by a preponderance of the evidence, that her nonselection was based on race, sex, or reprisal.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
Complainant alleges that she was subjected to the following instances of harassment: On June 21, 2011, while Complainant was performing the duties as Acting Supervisory Postmaster, S2 failed to reply to Complainant's e-mail requesting a personnel action for detailing Complainant to the position of Supervisory Postmaster and for a coworker to be detailed to the position of Operations Supervisor; during the first week of August 2011, Complainant's First level supervisor (S1: white, male), stated to Complainant that S2 "said some bad things" about one of Complainant's employees; beginning in October 2011, S1 stated to Complainant that S2 wanted S1 to counsel Complainant over a six week period for no justifiable reason; in October 2011, S2 saw Complainant driving a new vehicle and said, "I pay you too much;" on February 24, 2012, while escorting a guest through the mailroom, S2 walked by Complainant and failed to introduce Complainant to the guest, but did acknowledge a coworker of Complainant's (CW: white, male); on March 7, 2012, during a meeting, S2 only spoke to S1 and not Complainant; on March 14, 2012, S1 disclosed that he had been pre-selected from the June 2011 referral list for the position of Supervisory Postmaster, based on his "Lean Six Sigma" knowledge; on March 14, 2012, S1 disclosed to Complainant that S2 is a racist; on March 21, 2012, S1 told Complainant he didn't know how S2 sleeps at night based on the negative comments he makes about black people, that he made several derogatory statements about Complainant's work performance, and that he said "She's not ready; you think she's ready? Maybe [Complainant] could go to [the German city of] Kaiserslautern to be the Postmaster, because [S2] would not select [Complainant] for the position of Supervisory Postmaster"; and on May 14, 2012, S2 spoke negatively about Complainant to CW by saying, "She can have this job, she needs to get in here and learn what to do."
With regard to the allegations that S1 told Complainant that S2 is a racist and that S1 didn't know how S2 could sleep at night due to the negative comments he makes about black people, we note that S1 denied making such comments about S2 to Complainant, saying "as I recall I never said he was racist at the whole situation that was going on. I said if you file a race card, you better prove that you have documentation to prove that he's racist, but I've never, as I recall, saying [sic] that he was racist. No sir, I did not." ROI, DT, pp. 206. With regard to the remaining allegations, even assuming the actions occurred as described by Complainant, such incidents are not sufficiently severe as to unreasonably interfere with Complainant's work performance and create a hostile work environment.
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 established, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
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 (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 Complainants 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
September 3, 2015
__________________
Date
1 We note that the Agency did not find that Complainant's March 15, 2012 EEO Counselor contact was untimely and so we decline to address that issue on appeal.
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