0120130435
07-24-2015
Complainant v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Complainant
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120130435
Agency No. HHS-NIH-0062-2012
DECISION
Complainant filed an appeal from the Agency's September 26, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency, in its final decision, properly found that Complainant did not prove that she was subjected to harassment and discrimination on the basis of race, religion, color, and in reprisal for previous EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Assistant at the National Institutes of Health (NIH) in Bethesda, Maryland.
On January 6, 2012, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), religion (spiritual), color (light brown), and in reprisal for prior protected EEO activity when:
1. Beginning in or around 2008 and continuing, Complainant's requests for training were denied. The most recent denials of training occurred in August and December 2011; and on January 23, 2011, when Complainant was not offered physical security training;
2. On multiple occasions between October 2009 and June 2011, Complainant's second-level supervisor (S2) touched her hair;
3. From October 2011 through November 14, 2011, S1 made demeaning comments about her spiritual beliefs;
4. On several occasions from December 2010 to November 2011, Complainant was disparately treated when her requests to have her tour of duty changed were not approved;
5. On November 18, 2011, S1 began to require her to send an e-mail to her supervisors whenever she left and returned to her desk over the course of the work day;
6. Since she initiated contact with an EEO Counselor in regards to the instant matter, S1 began to closely monitor her work and instructed another employee to check the Agency's access records to determine when Complainant arrives and leaves work; and
7. On November 21, 2011, the Chief of Police refused to meet with Complainant to address her allegations of discrimination, retaliation, and harassment.
In an investigative statement, Complainant stated that in early 2008, she verbally requested to attend training, and in 2009, submitted a written request to her second-level supervisor (S2) for union training, but the training was denied in writing. Complainant further stated that beginning in 2010, she submitted requests to S1 for Contracting Officers Training Representative (COTR) and Physical Security training, but S1 indicated that he would have to ask S2 whether the requested training could be approved. Complainant stated that, on February 2, 2012, she asked for COTR and physical security training again, but S1 denied this request on February 13, 2012. Complainant stated that she learned that a coworker (African-American, brown skin, Jehovah's Witness) who is a Security Assistant had been approved for COTR, management, and physical security training.
Regarding claim 2, Complainant stated that in 2010 and 2011, S2 touched her hair and asked if it was a weave, but she did not tell her that this made her uncomfortable because she feared what the repercussion of confronting her would be. Complainant stated that S2 made remarks about her spiritual beliefs just before Halloween 2010. Regarding claim 3, Complainant stated that S2 said that while Complainant might believe in witches, she did not and would not dress her daughter as a witch, and on another occasion, S2 said that she did not know what kind of "nonsense" Complainant dabbled in, but that S2 answered to a "higher power God." Complainant further stated that S2 commented that she would treat Complainant fairly at work despite the fact the Complainant did not believe in a higher power, but that she would never invite Complainant to a barbeque.
Regarding claim 4, Complainant stated that in December 2010, she verbally requested to S1 to have her hours changed to an earlier shift, but she never heard a response from management. She stated that in January 2011, she submitted another request to S1, but again never received a response. Complainant further stated that she submitted a request for earlier work hours in January 2012 to S1 and S2, but she never heard back from them. Complainant stated that she never asked for specific work hours, only earlier hours. She stated that her work hours were changed from 8:30 a.m. to 5:00 p.m. to 7:30 a.m. to 4:00 p.m. when she chose to work in a different building in March 2012.
Regarding claim 5, Complainant stated that S1 required her to e-mail him, S2, and two other managers every time she left her desk. She further stated that a Caucasian coworker (C2) was also required to e-mail the group when he left his desk, but C1 was not required to do so. Regarding claim 6, Complainant stated that, shortly after she contacted an EEO Counselor, her work and attendance were closely monitored. She further stated that in late 2011, a dispatcher told her that S2 asked dispatch to provide her (S2) with a report showing the exact time Complainant arrived to work each day. Regarding claim 7, Complainant stated that the Police Chief stated that he would not have a meeting with Complainant and the union representative unless S2 was also present because it was an official meeting.
S1 (African-American, light skin, Southern Baptist) stated that he did not recall Complainant asking to attend management or COTR training in August 2011, but he received an e-mail dated January 30, 2012, from Complainant requesting COTR training. S1 further stated that Complainant had been sent to COTR training during Basic Project Officers training in July 2007, and S1 attended this training with Complainant. He also stated that he did not recall Complainant requesting to attend adjudication training in August 2011, but Complainant was not approved for such training in February 2012 because the Division of Police delegated only sworn police officers to adjudicate cases, and adjudication training did not align with Complainant's job description.
Regarding Physical Security training, S1 stated that Complainant did not meet the requirements for this training, and he did not offer this training to any of Complainant's coworkers. S1 stated that, although he learned that C1 was approved for Physical Security training, he was not involved in the decision to send her to this training.
S1 further stated that he meant for Complainant and her coworkers to send e-mails when they were going to be away from their assignments for an extended period of time, but Complainant and another employee sent e-mails every time they moved away from their work area. S1 stated that he told Complainant and a coworker that they did not have to send e-mails for every minute they were away from their desks, and C1 only sent e-mails when she was going to be away from her desk for extended periods of time.
S1 stated that he did not deny Complainant's request to work earlier hours, but Complainant was assigned to work in the Gateway Visitor Center from 9:00 a.m. to 5:30 p.m. by her own choice. S1 further stated that Complainant subsequently requested to change her work hours again, and he advised her that the request had to go through S2. S1 stated that S2 changed Complainant's work hours to 8:00 a.m. to 4:30 p.m.
S1 stated that when he entered his office on January 28, 2012, he found Complainant at his desk and on his computer. S1 stated that Complainant said she was at his computer to check her personal e-mail. S1 further stated that because of an ongoing investigation involving Complainant and the presence of sensitive employee information at his work station, he instructed Complainant not to sit at his work area without obtaining permission in writing. He further stated that because of additional complaints about tampering at employee work stations, he requested that the Access Control Supervisor check into Complainant's after-hours access and issued a letter of warning to Complainant reminding her to limit her use of Agency technology when not working.
S2 (African-American, brown skin, Christian) stated that Complainant did not request management and/or COTR training in August 2011 but did request physical security and COTR training in January 2012. S2 stated that she told Complainant to send the request to S1, and S1 explained to her that her job requirements did not require additional COTR training. S2 further stated that Complainant attended Basic Project Officers training in July 2007 with S1.
S2 further stated that Complainant was disapproved for adjudication training, and that none of her coworkers have been approved for this training. S2 started that only supervisors who adjudicate cases are given adjudication training. S2 also stated that Complainant was not given Physical Security training because her job responsibilities do not require this type of training, but C1 was approved for this training because the Chief of Police wanted her to become the Physical Security Officer for the highest security level building on the campus. She stated that C1 accepted this assignment as a collateral duty assignment and performed it for approximately one and one-half years.
Regarding claim 2, S2 stated that she touched Complainant's hair after Complainant offered for her to do so through jesting in which C1 compared her hair to Complainant's hair. S1 stated that Complainant never told her she was uncomfortable and never mention this matter to S1. Regarding claim 3, S2 stated that she never made comments about Complainant's religious beliefs and never felt comfortable enough with Complainant to have any religious conversations with her.
Regarding claim 4, S2 stated that in 2008, Complainant elected to work from 9:00 a.m. to 5:30 p.m. to provide operational coverage at the Gateway Visitor Center Special Guest desk. S2 stated that she advised S1 they had to discuss Complainant's request to change her work hours with the Chief of Police. S2 further stated that after she conferred with the Chief of Police, Complainant's hours were changed to 8:00 a.m. to 4:30 p.m., which are the hours for the Gateway Center. S2 also stated that in March 2012, Complainant elected to work in a relocated space in Building 31, B4 Level, and her work hours were changed to 7:30 a.m. to 4:00 p.m.
S2 further stated that she approved C1's request to change her work hours from 7:00 a.m. to 3:30 p.m. to 6:00 a.m. to 2:30 p.m. S2 stated that C1 requested to have her hours changed temporarily in April 2011 for "deeply personal confidential reasons," and the Chief of Police concurred with the change.
C2 (Caucasian, white, Baptist, no previous EEO activity) stated that S1 sent an e-mail to employees requesting that they send notification e-mails to supervisors and coworkers when they were away from their desks for an extended period of time. C2 further stated there was some confusion about whether this meant employees had to send e-mails every time they left their desks, but he believed that S1 meant that the e-mails should only be sent when employees were away from their desk areas for extended periods of time.
The Police Chief (African-American, brown, Catholic) stated that C1 had to take Physical Security training because of job duties as the Liaison Officer in the C.W. Bill Young Center for Biodefense and Emerging Infectious Diseases. He further stated that this NIH facility is the first to focus exclusively on the challenge of biodefense and research on reemerging infectious diseases that pose significant health risks. The Police Chief further stated that the American Federation of Government Employees (AFGE) shop steward requested a meeting with Complainant concerning a personnel issue involving Complainant, and the meeting was scheduled and approved.
The record contains copy of e-mails dated November 21, 2011, between the Police Chief and union steward. The e-mails reflect that the union steward requested a meeting with the Police Chief to discuss problems Complainant reported with S2. The Police Chief responded that he preferred that S2 attend the meeting because it was an official meeting. In response, the union steward said that Complainant declined the Police Chief's offer, and the union withdrew its request to meet on her behalf.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). Therein, the Agency concluded that Complainant did not prove that she was subjected to harassment or discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that, although she took Basic Project Office training in 2007, she did not attend COTR training. Complainant also contends that she has been subjected to various acts of retaliations after filing this EEO complaint, including being subjected to interrogation and investigation. The Agency does not raise any arguments on appeal.
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 (EEO MD-110), 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
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee. 682 F.2d 897 (11th Cir. 1982).
In this case, for purposes of analysis, we assume without so finding that Complainant established a prima facie case of discrimination under a disparate treatment analysis. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, for claim 1, management stated that Complainant was disapproved for COTR training in 2011 because she had already taken such training in July 2007 in the Basic Project Officers class, and her job duties did not require additional COTR training. S1 stated that Complainant did not meet the requirements for Physical Security training. The Police Chief stated that C1 had to take Physical Security training because of her job duties as the Liaison Officer in the C.W. Bill Young Center for Biodefense and Emerging Infectious Diseases. Regarding adjudication training, S1 stated that Complainant did not receive this training because the Division of Police delegated only sworn police officers to adjudicate cases, and adjudication training did not align with Complainant's job description. Additionally, S2 stated that only supervisors who adjudicated cases were given this training.
For claim 2, S2 stated that she touched Complainant's hair after Complainant offered for her to do so during jesting in which C1 compared her hair to Complainant's hair. For claim 3, S2 stated that she never made comments about Complainant's religious beliefs and never felt comfortable enough with Complainant to have any religious conversations with her.
For claim 4, S1 stated that he did not deny Complainant's request to change her work hours, and she was assigned to work the Gateway Visitor Center from 9:00 a.m. to 5:30 p.m. by her choice. S2 stated that Complainant subsequently asked to have her work hours changed because the Center was underutilized, and her work hours were changed to 8:00 a.m. to 4:30 p.m. S2 also that Complainant then elected to work in another building with the work hours of 7:30 a.m. to 4:00 p.m.
With respect to claim 5, S1 stated that he meant for Complainant and her coworkers to send e-mails when they were going to be away from their assignments for an extended period of time, but Complainant and another employee sent e-mails every time they moved away from their work area. S1 stated that he told Complainant and a coworker that they did not have to send e-mails for every minute they were away from their desks, and C1 only sent e-mails when she was going to be away from her desk for extended periods of time.
For claim 6, S1 stated that, because of an ongoing investigation involving Complainant and the presence of sensitive employee information at his work station, he instructed Complainant not to sit at his work area without obtaining permission in writing. S1 also stated that because of additional complaints about tampering at employee work stations, he requested that the Access Control Supervisor check into Complainant's after-hours access and issued a letter of warning to Complainant reminding her of the Agency's policy on limiting Agency technology systems when not working.
Regarding claim 7, the record contains a copy of e-mails that reflect that the Police Chief stated that he preferred that S2 attend a requested meeting about Complainant's issues because it would be an official meeting. The record further reveals that Complainant declined S2's meeting arrangement, and the union its meeting request. These explanations satisfy the Agency's burden to articulate legitimate, non-discriminatory reasons for its actions.
In an attempt to prove pretext, Complainant maintains that COTR training is not the same thing as the Basic Project Officers training she received in 2007. However, two management officials testified that it was essentially the same course that Complainant took in 2007 during the Basic Project Officers course. We are not persuaded that the Agency's assertions with regard to this matter are unworthy of belief. Also on appeal, Complainant notes that C1 was given Physical Security training, whereas she was not. However, C1 served as the Liaison Officer in the C.W. Bill Young Center for Biodefense and Emerging Infectious Diseases, but Complainant did not. Moreover, the Chief of Police wanted C1 to become the Physical Security Officer for the highest security level building on the campus. As such, C1 needed to be prepared for job duties relevant to Physical Security training, whereas Complainant did not.
Overall, we find that Complainant did not prove that the Agency's legitimate, non-discriminatory reasons for its actions were pretext for unlawful discrimination. Likewise, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a 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 has not established that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Finally, we note that Complainant contends that she has been subjected to retaliation after she filed the instant EEO complaint. These alleged actions were not included in this complaint nor investigated. As such, to the extent that Complainant contends that she has been subjected to subsequent retaliation, she should contact an EEO Counselor about these matters if she wants to pursue these claims.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision that found that Complainant did not prove that she was subjected to unlawful discrimination or harassment on the bases of race, color, religion, or in reprisal for previous EEO activity.
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 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
July 24, 2015
Date
1 If Complainant does so, for timeliness purposes, the date of the filing of the instant appeal will be deemed the date of initial EEO Counselor contact.
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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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