0120132207
08-21-2015
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. 0120132207
Hearing No. 550-2013-00019X
Agency No. ARSIERRA12MAR00873
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 20, 2013 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. For the reasons set forth below, the Agency's final decision is approved.
ISSUES PRESENTED
Whether the Agency should be sanctioned for not complying with regulatory timeframes; and whether Complainant established that she was subjected to discrimination and harassment based on her sex and prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Contracting Specialist, GS-12 at the Agency's Sierra Army Depot facility in Herlong, California. On April 12, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to a hostile work environment by her supervisor from February 9, 2011 to March 20, 2012. Specifically, Complainant alleges that she was subjected to the following discriminatory actions by her supervisor:
1. In a meeting on February 28, 2012, Complainant was informed that her request to telework was denied, that she was being assigned six additional duties, and was told that her supervisor had an issue with her husband and kids;
2. Complainant's request to attend a training course taking place at the end of FY 2011 was denied;
3. In August 2011, Complainant was scolded for not checking her access log, confronted at her desk by her supervisor who was pointing and yelling in her face; and
4. In August 2011, her supervisor responded hastily and scolded her when she asked for guidance about a solicitation.
On October 12, 2012, Complainant, because the Agency failed to investigate her complaint within the allotted 180 day time frame, requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 31, 2012, the AJ issued an order for the Agency to submit the complaint file or show good cause why it was unable to do so. On November 13, 2012, the Agency stated that although an investigator was requested none had been assigned to investigate the case. Accepting this explanation, on December 6, 2012, the AJ ordered the Agency to complete and expedited the investigation within 60 days. On February 5, 2013, the Agency submitted a copy of the Report of Investigation (ROI).
On February 26, 2013, the AJ remanded the case for a final decision (FAD) after Complainant withdrew her hearing request. The AJ did not specify a date by which the Agency had to issue the FAD. Complainant filed the instant appeal on May 16, 2013, and, relying on her interpretation of the regulations, argued that the Agency was not in compliance because it had not issued a FAD within 60 days of the withdrawal of her hearing request. Complainant asked that the Commission issue a default judgment against the Agency as a sanction. The Agency issued a FAD on June 20, 2013.
As noted above, Complainant maintained that she was subjected to a hostile work environment by her supervisor from February 9, 2011 until March 20, 2012 as outlined in the Agency's June 20, 2013 FAD. Complainant's supervisor testified that she only approved one request to telework since assuming supervisory duties, and that this request was approved because the employee was promised telework after one year as a condition of employment. Complainant's supervisor stated that she denied the training request for September 2012 because the date fell at the end of the fiscal year which was a busy time. She admitted assigning Complainant six additional duties as these were duties she previously performed, and that she specifically assigned her the task of completing the audit because she thought it would be a good learning experience for her. Complainant's supervisor denies, and there is no evidence in the record to support, the allegation that she told Complainant she did not like her family, or that she stood over Complainant, pointing and spitting in her face while scolding her.
ANALYSIS AND FINDINGS
At the outset, we note that, with respect to the AJ's decision to extend by sixty (60) days the time period by which the Agency had to submit an ROI, Administrative Judge's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ abused her discretion by accepting the Agency's explanation for its untimeliness and providing additional time.
Likewise, with respect to the timeliness of the Agency's FAD, the Commission notes that Complainant relied on the language from 29 C.F.R. � 1614.110(b) to support her contention that the Agency took longer than 60 days in issuing its FAD. Upon review, however, we find that there is nothing in the record to establish that the facts in the instant matter fit within the purview of either scenario described in 29 C.F.R. � 1614.110. In the absence of a specific time frame set forth by the AJ when she remanded the matter back to the Agency for the issuance of a FAD, the Agency was required to act in a reasonable amount of time. Complainant, other than citing 29 C.F.R. � 1614.110(b), which does not apply here, has not established that the Agency took an unreasonable amount of time to issue the FAD. Complainant herself maintained that the ROI was inadequate in large part because it was rushed.1 In light of these facts, we cannot conclude that the Agency took an unreasonable amount of time to issue the FAD.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for each of the alleged discriminatory actions complained of in the instant matter, and that Complainant was unable to demonstrate that any conduct on the part of the Agency was based on discriminatory animus. The record supports the supervisor's testimony with respect to her actions regarding the denial of telework, the assignment of duties, and the denial of training authorization. The record reflects that Complainant's supervisor had very specific reasons for each of her actions, as set forth above. The Commission has long held that an 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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). In light of the evidence in the record, we find that Complainant failed to establish she was subjected to discrimination based on her sex, or reprisal.
With respect to any contention by Complainant that she was subjected to a hostile work environment with respect to the matters set forth in claims 1 and 2 of her complaint, 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).
Even if we consider the matters identified as claims 3, 4 and that part of claim 1 concerning Complainant's family independent of the others, we find no persuasive evidence that the conduct which Complainant characterizes as discriminatory harassment, even if it occurred as alleged, was motivated by unlawful considerations of her sex or previous EEO activity. Nor was the conduct complained of in the instant matter severe or pervasive enough to be considered hostile or abusive by a reasonable person in her position. Complainant has not presented any sworn statements from witnesses other than herself, or documents that contradict the explanations provided by the Agency, or which calls their veracity into question. It is Complainant's burden to prove the existence of all the elements of her hostile environment claims by a preponderance of the evidence.
CONCLUSION
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 Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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. signature
Carlton M. Hadden, Director
Office of Federal Operations
_8/21/15_________________
Date
1 According to Complainant, the investigator did not fully explore each allegation; and that, due to the investigator's haste, the "investigation results show a low quality examination of evidence and an inadequate investigation analysis."
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