Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 20, 2013

0120120994 (E.E.O.C. Aug. 20, 2013)

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. 0120120994 Hearing No. 451-2011-00221X Agency No. ARHOOD10MAR01057 DECISION Complainant filed an appeal from the Agency’s November 30, 2011 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 Commission AFFIRMS the Agency’s Final Order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist, at the Agency’s Fort Hood Public Affairs Office at Fort Hood, Texas. On May 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her by subjecting her to harassment in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. In September 2008, Complainant was referred to as "C1’s leftover" by S1; 2. In October 2009, C2, and E1 sent an electronic mail message to all civilian and military Public Affairs Officers (PAO) inviting them to attend an awards ceremony at the outgoing Commanding General's home and Complainant was not invited; 3. In November 2009, prior to C2’s deployment, Complainant was moved to the Community Relations division after more than five years of continuous service in the Media Relations division and was replaced with an unqualified specialist; 0120120994 2 4. In January 2010, during a meeting with all the PAOs, C2 stated that S1 was retiring and there was only one person capable of that task, E1. C2 then looked at Complainant and asked if she had anything to add, which she believed singled her out in a negative fashion; 5. On February 9, 2010, C2 ordered Complainant to attend a Killeen City Council meeting to spy and influence their decision making process, which Complainant asserts was a violation of public affairs policy; 6. On February 25, 2010, C2 stated he would issue (and ultimately did issue) Complainant a letter of reprimand prior to his deployment; 7. On March 8, 2010, C2 told E1 to counsel Complainant although S1 had not yet retired and was still in the position; 8. On March 12, 2010, Complainant discovered that her civilian performance appraisal was downgraded without her knowledge from a level 1 to a level 2 on two elements of the appraisal form; and 9. On August 3, 2010, three hours of overtime for which Complainant had been certified for payment, had been removed on the stored computer form. 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 (AJ). Complainant requested a hearing and the AJ held a hearing on October 14, 2011, and issued her decision on November 10, 2011. In her Decision, the AJ found that Complainant did not establish a prima facie case of harassment. Specifically, the AJ found that Complainant had previously participated in the EEO process. The AJ found however, that Complainant did not describe incidents that rose to the level of harassment. With regard to the incident described in claim (1), the AJ found this action, was not an adverse action and did not rise to the level of harassment. The AJ considered that being referred to as a supervisor’s “left over” was inappropriate or even rude, but that the isolated comment was not harassment. Regarding claim (2), the AJ found the evidence showed that neither of the two Agency officials (S2 or E1) Complainant alleged to have retaliated against her were responsible for the guest list for an awards ceremony to which Complainant was not invited. Regarding claim (3), the AJ found that Complainant did not object at the time she was reassigned to Community Relations (CR) and S2 selected another employee (E2) to replace her 0120120994 3 as Chief of Media Relations. The AJ found that E2 was experienced in media relations and that S2 had the authority to transfer Complainant. The AJ found no evidence that the transfer was in reprisal for Complainant’s prior protected activity and also that Complainant would have complained about the November 2009 transfer sooner than she did (in March 2010) had she reasonably suspected discrimination motivated S2’s decision. Regarding claim (4), the AJ found that Complainant felt she was singled out in a negative light, during a gathering in which S2 announced to the office that E1 would be taking over the supervisory duties of S1, Complainant’s previous immediate supervisor. Without prompting, Complainant stated that S2 asked Complainant if she had any questions, and she was the only employee present during the meeting that S2 asked by name for any questions or comments. The AJ found S2’s conduct did not rise to the level of harassment, and that another witness, E3, did not interpret S2’s question to Complainant as an attempt to harass her. With respect to claim (5), the AJ found that this claim also did not describe conduct either severe or pervasive. The AJ considered the evidence that S2 did direct Complainant to attend a community meeting for the purpose of spying and influencing the people at the meeting. Even so, the AJ found S2’s instructions were not harassment. Regarding claim (6), the AJ found that S2 informed Complainant that he was issuing her a Letter of Reprimand and that S2 did issue Complainant the letter for insubordination and disrespect toward E1, who had recently assumed supervisory duties over Complainant. The AJ considered the evidence that Complainant was requested to meet with S2 and E1 for counseling regarding her performance standards. Complainant asked if the proposed meeting was a counseling, and was informed that it was. Complainant, the AJ noted, then declined to meet with E1 and S2 and instead left the office. The AJ found Complainant’s refusal to have a face to face meeting with the person selected to replace her immediate supervisor regarding her performance standards, was not reasonable. The AJ found that when Complainant was called to a meeting with Complainant’s supervisors this was not harassment; rather Complainant’s behavior was that of a difficult and uncooperative employee. Regarding claim (7), the AJ found that Complainant was not subjected to harassment when S2 instructed E1 counsel Complainant even though S1 had not yet retired from the Agency. The AJ found that Complainant displayed a poor attitude toward E1 whom Complainant believed had been given an unfair advantage over her in E1’s selection to replace S1. The AJ found the evidence showed that Complainant resisted E1’s attempts to supervise Complainant. Additionally, the AJ noted the evidence indicated that problems between E1 and Complainant were not motivated by Complainant’s prior protected activity, but because E1 believed that Complainant was responsible for the initiation of a serious investigation into E1’s time and attendance. Regarding claim (8), the AJ considered the evidence that Complainant was asked by S1 to sign a blank performance appraisal. This event occurred, the AJ noted, because S1 was retiring following an extended absence and S2 was preparing to deploy. The AJ found this 0120120994 4 management action was believable under the circumstances, while it appeared to be a poor management decision. The AJ found the evidence established that the downgrade in two sections from a one to a two (first block to second block) was made by an Agency employee in the Human Resources Department and not by either E1 or S2. The AJ found the evidence did not show any connection between the Agency’s action and Complainant’s prior EEO activity. With respect to claim (9), the AJ found that Complainant had been tasked with filling two kiosks with promotional materials the week of July 20, 2010. Complainant had been allowed to leave early on July 20, 2010, and was expected to fill the two kiosks. S3, Complainant’s immediate supervisor at that time, discovered later that week that the kiosks had not been filled as he expected after Complainant’s early departure. S3, the AJ found, later disallowed three hours of previously approved overtime that Complainant submitted for filling the kiosks on Friday, July 23, 2010 (her regular day off). The AJ found S3’s explanation credible for why he removed the overtime hours from Complainant’s time and attendance and did not find the evidence demonstrated that his actions were motivated by reprisal. The AJ concluded that even if the acts Complainant’s describes in her complaint happened as Complainant claims, that the events together are neither severe nor pervasive and do not rise to the level of harassment. The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to reprisal discrimination as alleged. 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). To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 0120120994 5 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In the instant case we find the substantial evidence supports the AJ’s Decision. Specifically, we find, as did the AJ, that the incidents described in Complainant’s complaint were not shown by Complainant to have been motivated by reprisal. We further find that Complainant does not deny the conduct cited in the most serious incident, the discrete personnel action described in claim (6) (Letter of Reprimand). We find no dispute that Complainant did not comply with instructions regarding her attendance at a conference or counseling during which Complainant’s performance standards were to be communicated. We find the evidence does not show that Complainant’s prior EEO activity motivated the Agency’s action. Regarding the various comments, lowering or correcting of Complainant’s performance appraisal, supervisory instructions, her reassignment, and the removal of overtime hours from her time, we find, as did the AJ, that Complainant did not present evidence to show that more likely than not, her prior EEO activity motivated the Agency’s actions. We find that the actions were ordinary management decisions with which Complainant may have disagreed or did not like, but that were unrelated to Complainant’s prior EEO activity. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no discrimination. 0120120994 6 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 0120120994 7 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 August 20, 2013 Date