0120150483
05-07-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150483
Hearing No. 480-2012-00493X
Agency No. 11-62786-01578
DECISION
Complainant filed an appeal from the Agency's January 12, 2015 final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Shipbuilding Specialist in the Shipbuilding Conversion and Repair unit at the Agency's San Diego Detachment facility in San Diego, California.
On April 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII when, on February 22, 2011, her supervisor issued Complainant a Letter of Caution.
The Agency accepted the claim for investigation. Complainant later claimed she was subjected to harassment and gender discrimination. The investigation revealed the following facts.
Complainant performed the duties of a Shipbuilding Specialist, GS-1101-12. Complainant served as the primary government point of contact for the Project Office, according to her position description. As part of her duties, Complainant "managed and coordinated the attendance and support related to the construction, test and delivery administration of Navy ships under construction" at the shipyard. These duties including managing the reservists and Navy Interns assigned to the Project Office. Complainant issued the work assignments.
On October 29, 2010, Complainant initiated EEO contact, alleging that she had been discriminated against on the basis of her race (Black) and disability (physical) when she was denied administrative leave. The matter was settled on January 5, 2011. Complainant did not file a formal complaint.
Complainant's first line supervisor was the Production / Delivery Manager (Caucasian, white, female, no prior EEO activity) (S1). Her second line supervisor was the Deputy Officer in Charge (Hispanic, tan, female, no prior EEO activity) (S2). Management was aware of Complainant's race, color, sex and prior EEO activity.
Letter of Caution
On December 10, 2010, management charged Complainant with violating the Code of Ethics. With regard to the issue at hand, the record shows that, on or around December 6, 2010, Complainant's first line supervisor was notified by an employee that the previous week, Complainant approached many of her co-workers, including the employee who raised the issue with Complainant's supervisor, that Complainant asked for assistance with a college homework assignment. That employee assisted Complainant. He averred that he noticed one of the Navy interns researching the same assignment on a government computer. The employee questioned Complainant about the appropriateness of Complainant assigning her school homework to an intern. He notified Complainant's supervisor about what he observed.
The intern given the assignment and several coworkers averred that Complainant had approached them and asked them to help her on the homework assignment. The intern provided the requested assistance by using her government computer during working hours to research websites on men's deodorant.
The Agency has a policy which addresses the use of government computers. The instruction, referenced as SUPSHIP Bath Instruction 5230.1 provides that all communication and information system devices are authorized for brief personal use. Personal use may be limited, curtailed or revoked if the use is determined to be excessive or disruptive to network services. In addition, employees are expected to discuss their usage of the government computer with their supervisor prior to use. Complainant did not advise her supervisor of her assignment requests to the employees and interns.
Complainant was called into a "pre-action meeting." During that meeting, Complainant confirmed that she had asked many of her co-workers and the intern for assistance. During the meeting, management explained that "requests for personal assistance made peer-to-peer are vastly different than the same request made to someone whose work assignments [she] manage[s]."
On January 10, 2011, Complainant filed an informal complaint, in which she alleged that she was discriminated against based on her race when she was called into the pre-action meeting.
Complainant also alleged she was treated more harshly by management regarding the use of computers. Complainant averred that others engage in inappropriate behavior, but they were not issued a Letter of Caution. She averred that she brought these violations to the attention of management. She noted that multiple people in her command who participated in a lottery pool and others used their government computers to make vacation plans and to do homework, but they did not receive a Letter of Caution. She noted that the employee who raised the concern with Complainant's supervisor used government computer for vacation plans and his supervisor knew and approved his use of the computer.
On February 22, 2011, Complainant's supervisor issued Complainant a Letter of Caution. The Letter reminded Complainant of her responsibilities as a Government employee, especially when serving in a Leadership position. The Letter of Caution stated that it was not a disciplinary action and would expire in one year. The Letter would be retained in the supervisor's files for a period of one year, during which time it could be considered in assessing a greater penalty if the incident was repeated. The Agency disputes that the Letter of Caution became a part of Complainant's personnel file.
The record does not show that Complainant requested approval from her first-line supervisor. The record also does not show that the peer to whom Complainant compared her treatment asked an intern to do personal work during duty hours.
The record shows that the Agency disciplined a Caucasian male employee in a similar position of authority for a similar ethics violation.
Further, the record shows the Agency conducted an investigation into Complainant's claim of misuse of government equipment and e-mail and the lottery pool by other employees. Those in non-leadership positions received counseling. Written counseling was given to individuals who were in a leadership position. There is no evidence that any disciplinary actions were targeted to certain races, to women, or those with prior known EEO activity.
On September 11, 2011, Complainant transferred to another command in Japan, where she serves as a Supervisory Industrial Specialist.
At the conclusion of the investigation on December 14, 2011, 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). Complainant requested a hearing. The AJ held the hearing request in abeyance for a year, because Complainant had advised the Settlement Officer that her counsel was not available. The AJ issued an order instructing Complainant that she must notify the AJ when she was prepared to proceed, but no later than November 15, 2013. On April 23, 2014, the AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ's Order by November 15, 2013. The AJ remanded the complaint to the Agency for a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination. The Agency reasoned that Complainant did not identify others in leadership positions who engaged in similar conduct who were not disciplined. The Agency referenced the fact that the Agency previously disciplined an employee in a similar position of authority for a similar ethics violation. This individual was a male, with no prior EEO activity, and not of Complainant's race or color. The Agency found that Complainant "cannot establish the essential elements of her case under a theory of disparate treatment discrimination."
Prior to the Agency's issuance of its decision on the merits, Complainant appealed from the AJ's denial of her request for a hearing.
ANALYSIS AND FINDINGS
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. (November 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").
In her brief on appeal, Complainant maintains that she did not delegate any of her official work to the intern. Instead, Complainant argues "the most that she did was to ask [the intern] for help, as well as the co-workers, not a violation as alleged." Complainant restates her contention that other employees routinely used office equipment for personal gain, and that she was harassed and subjected to disparate treatment because of her race and gender. Complainant did not address her claim of reprisal.
Discrimination
Section 717 of Title VII requires that federal agencies make all personnel actions free of discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race, color, sex, national origin or religion). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. 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).
We find that Complainant failed to show that there were others who were similarly situated who had not been disciplined. For purposes of our analysis of her claims, however, we will assume that she established her prima facie claims.
We find that the Agency articulated a legitimate, non-discriminatory reason for issuing the Letter of Caution. Therefore, our analysis turns to the Agency's stated reason. The Agency asserts that Complainant's assigning personal work to the intern violated the command instruction and constituted an ethics violation. Complainant acknowledges that she asked an intern, who received assignments routinely from Complainant, to help Complainant with a personal homework assignment during duty hours. These facts were relayed to her supervisor and served as the stated basis for the issuance of the Letter of Caution.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
There is no evidence that this ethics rule was applied as a pretext for discrimination. We find that Complainant did not show that the Agency's articulated reason was a pretext for discrimination.
Harassment / Hostile Work Environment
In this case, Complainant claims that she was subjected to harassment because of her race, gender, and reprisal. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In the instant case, we find that Complainant did not meet her burden, because Complainant's allegations concern isolated incidents (being called to a pre-meeting and issuance of a Letter of Caution) that, even if proven true, are not sufficient to state a hostile or abusive work environment claim. For all of these reasons, we find that Complainant failed to prove discrimination by a preponderance of the evidence.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD for the reasons stated herein.
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 tends 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
May 7, 2015
__________________
Date
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0120150483
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150483