0120100188
09-19-2012
Deborah C. Lyles, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Deborah C. Lyles,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120100188
Agency No. 9L2W09002F09
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Secretary (Office Automation), GS-0318-09, Secretary of the Air Force, Office of Small Business Programs (SAF/SB), Bolling Air Force Base, in Washington, D.C. Complainant sought counseling and subsequently filed a formal complaint.
Complainant alleged that she was subjected to harassment on the bases of race (African-American) and sex (female) when:
1. On November 17, 2008, Complainant's first-level supervisor falsely accused Complainant of copying and distributing an unauthorized disciplinary action and then told her, "Get out of my office."
2. On November 19, 2008, Complainant's supervisor strongly recommended that Complainant seek personal/psychological help.
3. On November 19, 2008, Complainant's supervisor sent Complainant an electronic mail message with 26 pages of job sites and announcement of vacant positions within the federal government.
4. On November 20, 2008, Complainant's first level supervisor sent Complainant an electronic mail message stating that Complainant should contact a Personnelist regarding job vacancies.
5. On November 20, 2008, the Program manager removed Complainant from the workplace organizational chart presented to Major Air Command (MAJCOM) Directors.
6. On November 25, 2008, Complainant discovered her work files were missing.
7. On December 1, 2008, Complainant received a negative Performance Feedback in a meeting attended by the Program Manager over Complainant's objection.
8. On December 5, 2008, Complainant's supervisor issued her a Letter of Counseling after refusing to accept factual information from her.
9. On December 8, 2008, Complainant's assigned duties were changed when her primary duty was removed.
10. On December 15, 2008, Complainant discovered that her supervisor had compromised the terms and conditions of her employment.1
At the conclusion of the investigation, Complainant received a copy of the investigative report. The Agency informed Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested an immediate final decision from the Agency on the merits of her complaint.
On October 7, 2009, the Agency issued a decision finding no discrimination. Thereafter, Complainant filed the instant appeal.
On appeal, Complainant did not cite any basis for her appeal nor did she allege that the Agency's final decision contained any specific errors. Complainant merely indicated her general desire to appeal the decision without further explanation.
In response to Complainant's Appeal, the Agency maintained its position that there was no evidence to support Complainant's assertions that the actions taken by the Director of the Office of Small Business Programs (Director) were discriminatory. Rather, the Agency argued that the Agency's final decision was correct in its analysis of the facts as developed in the investigative file and in its finding of no discrimination. Further, the Agency asserted that all of the actions taken by the Director against Complainant were fully justified employment actions and all were related solely to Complainant's duty performance.
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 EEOC Management Directive 110, Chapter 9, � VI.A. November 9, 1999) (explaining that 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").
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. United States 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 (March 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).
To establish a claim of hostile work environment, 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 intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1 and 8, the Director denied Complainant's allegation that he did not accept factual information from her, asserting that he was unaware of any factual information she had provided that he did not accept. The Director also denied accusing Complainant of distributing the Letter of Reprimand (LOR) to others, stating the he only asked Complainant whether she had sent it to anyone else. The Director stated that he had an almost two-hour meeting with Complainant regarding her unauthorized copying of the LOR. The Director stated that, during this meeting, Complainant repeatedly failed to respond when he asked her whether she had sent the document to anyone else, which concerned him due to the Privacy Act implications if the LOR had been released to others. According to the Director, Complainant did not answer this question, despite his verbal and written requests for a response, until December 5, 2008, when she denied distributing the LOR to anyone else, after which he considered the matter closed. The Director also denied Complainant's assertion that he asked her to scan a document earlier that day, stating that this did simply did not happen; rather, he stated that Complainant had taken it upon herself to scan and send an electronic mail message of the LOR without authorization and without ascertaining whether or not the Program Manager (Manager) was authorized to have this document. The Director claimed that when Complainant defended her actions by stating that he had asked her to scan the document, he considered it to be such a "blatantly false statement" that he saw no further purpose to their meeting and asked her to leave. We note that the Manager, who had sat in on this meeting, corroborated the Director's testimony, stating that she did not hear the Director yell to Complainant to get out of his office.
The Director's testimony was also supported by several electronic mail messages in the record. Specifically, we note that in her initial electronic mail message to the Director informing him of her action in scanning the LOR, Complainant acknowledged, "I'm not sure if you/[Manager] needed the copy scanned for official record. If so, attached is the file." In his response, sent the following morning, the Director asked Complainant to give the Manager the hard copy of the LOR, delete any reference to the LOR still in her computer, write up a statement as to how Complainant obtained the LOR, and to give the Director a list of anyone else who may have seen the document. The Director concluded his electronic mail message by stating that he was very sorry to involve her in the action, as he knew Complainant was a close friend of the LOR's intended recipient. In her response to this electronic mail message, Complainant informed the Director that she had provided the Manager with the hard copy as requested and provided a synopsis of how she came to take the action at issue, but denied any close friendship with the employee involved. We note in particular that Complainant explained that she thought someone may have mistakenly left the document in the voucher folder and that she had scanned the subject document "[d]ue to you inquiring about the scanner earlier that morning and because I asked you if you wanted something scanned, I thought you wanted me to take action," although Complainant omitted any mention of the Director's refusal of her offer. However, Complainant did not respond to the Director's electronic mail message query as to who else might have been sent the LOR.
The Director's electronic mail message response to Complainant acknowledged the possibility that the draft LOR may have been mistakenly left in the folder, but stated that he did not recall seeing it there. The Director also informed Complainant that the LOR was merely an unsigned draft document; he had not asked her to do anything with the document; and the proper course of action for a draft document such as this was for Complainant to have brought it directly to him without any further action on her part. The Director reminded Complainant that he had previously informed her that, in her position, she would occasionally come across sensitive information, and that he expected her to maintain the confidentiality of the information to which she was privy. Finally, the Director again asked Complainant to tell him of anyone to whom she might have provided information about the LOR.
In Complainant's response to the Director's electronic mail message, Complainant reminded the Director that "we talked yesterday about me assisting you with scanning a document," noting that the Manager had also scanned a document on the Director's behalf and "there did not appear to be a problem." Complainant further reminded the Director that she was required to provide the Manager with all of the travel vouchers for her review, and that the Director had requested that the Manager be included on all electronic mail messages that "included action regarding you." However, Complainant again failed to respond to the Director's request for information regarding who else might have seen the LOR.
With respect to the Letter of Counseling, the Director confirmed that he gave Complainant a Letter of Counseling for scanning and distributing a sensitive personnel document without authority to do so. The Director stated that he gave Complainant a travel package, but does not recall placing the Letter of Reprimand in the travel package. The Director maintained that Complainant has a long-time close relationship with the employee who was being disciplined; therefore, he was keeping her from being involved in the processing of the Letter of Reprimand. The Director explained that he does not know how Complainant got a copy of the draft Letter of Reprimand and that after Complainant sent him an electronic mail message with a copy of the reprimand, he immediately told her to delete it from her computer. The Director maintained that he told Complainant that, because of her close relationship with the recipient, he did not want her to be involved with it. The Director asserts that Complainant's actions showed a lack of good judgment on her part, which was a basis for the Letter of Counseling.
As to claim 2, the Director denied that he had recommended that Complainant seek psychological or personal help. Rather, the Director stated that he had discussed his concerns about Complainant's performance and attitude with the Human Resources Specialist telling the Human Resources Specialist that Complainant appeared depressed and tired. The Director further stated that the Human Resources Specialist advised him to give Complainant information on the Employee Assistance Program (EAP) and, to that end, forwarded him the EAP brochure. The Director asserted that the EAP was a service available to all employees, which allows them to discuss sensitive matters in confidence, and one to which he had referred other employees in the past. The Director stated that he sent the EAP brochure to Complainant in order to help her and never characterized it verbally or in writing as personal or psychological assistance, noting that after he sent the brochure, he did not discuss this matter further with Complainant.
With respect to claims 3 and 4, the Director acknowledged that he provided Complainant with a list of federal job vacancies and contact information for an Air Force District of Washington (AFDW) Personnel Specialist (Personnel Specialist), but stated that this was information that the AFDW Personnel Office had recommended that he provide to Complainant. Moreover, the Director stated that the information he provided was intended to help Complainant and was in response to her stated desire to no longer work for him and seek employment elsewhere. The Director asserted that, when Complainant told him she no longer wanted to work in SAF/SB, he spoke with the Personnel Specialist, who informed him that Complainant would have to check on job vacancies herself. However, the Director stated that the Personnel Specialist also offered to talk to Complainant directly and recommended that he tell Complainant to contact her, which he did. Finally the Director stated that he knew about the government website "USAJOBS.gov," and used this site to conduct a search for federal job vacancies in Complainant's job series, after which he provided Complainant with both the web site and the results of his search.
Incidental to claim 5, the Manager stated that the chart referred to by Complainant was not an organizational chart, but rather, a chart designed to delineate the areas of responsibility for all SAF/SB Action Officers (AOs) and to assist the MAJCOM Directors. The Manager said that, when she first came to SAF/SB, there was no duty description for the SAF/SB AOS delineating their area of responsibility. The Manager asserted that, accordingly, she developed a "draft duties chart" on behalf of the Director, which depicted the realignment of duties of the SAF/SB AOs. The Manager claimed that the Director approved the chart in September 2008, and it was subsequently presented to the MAJCOM Directors in October 2008. The Manager further stated that, although Complainant did not appear on this chart, as she was not an AO, she did appear on an organizational chart, which also existed at that time.
The Director stated that he was unsure as to which chart Complainant was referring, although he speculated that she may have been talking about a chart he prepared in October 2008. The Director noted that this chart was not an organizational chart but, rather, was a chart depicting the duties of SAF/SB Senior Analysts; because Complainant was an administrative employee and not an Analyst, it was neither necessary nor useful to include Complainant in the chart. The Director said that, during this same time period, he had also prepared an organizational chart in which Complainant's position as his Secretary was clearly depicted. The Director concluded by noting that Complainant had never raised this issue with him, and he was unaware of her concerns regarding the chart until he read her EEO complaint.
In relation to claim 6, the Deputy Director denied any knowledge of the missing files or of Complainant's informing him that the files were missing, and further denied receiving any electronic mail messages regarding these files, as alleged by Complainant. We note that there was no electronic mail message regarding missing files from Complainant to the Deputy Director in the record. The Director stated that he had no knowledge of any missing files, stating that Complainant never informed him that these files were missing, and he only learned of this incident when reading Complainant's EEO complaint. In addition, the Director asserted that the Deputy Director never mentioned the missing files to him. The Director asserted that he did not take, nor request anyone else to take, the files alleged by Complainant to have been removed from her desk. We note that, in her rebuttal, Complainant conceded that she did not mention the missing files to anyone except the Deputy Director.
Regarding claim 7, the Director acknowledged that, on the date in question, he had provided Complainant with a mid-term Progress Review Worksheet in which he identified areas in Complainant's duty performance, which needed to be improved. Specifically, the Director stated that, of the six performance elements in Complainant's Core Personnel Document (Core Doc), he had recommended that she obtain training in five of them. The Director further stated that the only performance element omitted from this recommendation did not appear to require any specific training. The Director claimed that he had made this recommendation because Complainant's work needed significant improvements in these areas. However, the Director noted that prior to discussing her performance with Complainant, he had requested that the AFDW Employee Relations Office review his assessments; after they had done so, they informed him that they found his assessment to be both appropriate and fair. The Director asserted that his goal was to provide Complainant with a constructive review of her performance, as opposed to a negative review, and he believed that he had given Complainant a fair assessment of her performance as well as constructive recommendations on how to improve her performance. Finally, the Director acknowledged that he had requested Complainant's presence during the progress review. The Director stated he had done so only because, during their November 18, 2008 meeting, Complainant had made both an untrue statement to him and a veiled threat against him. The Director asserted that he wanted any further meetings between them to be witnessed. With regard to the threat, the Director stated that, during the earlier meeting, Complainant informed him that she had received an anonymous phone call, in which the caller asked about the Director's relationship with a minority employee. According to the Director, Complainant said that, although she could have "thrown [him] under the bus," she did not out of loyalty to him, which concerned him, as he was not certain of Complainant's intent of making such a statement to him.
The Manager confirmed that she had worked with the Director in drafting Complainant's mid-year performance feedback, including providing examples of deficient performance, expectations, internal deadlines, etc. The Manager's statements are supported by her electronic mail messages to the Director, dated November 28, 2008, in which she informed the Director that she reviewed his feedback for Complainant and found it to be "good" and "thorough." In addition, the Manager provided suggestions on the conduct of the actual feedback session.
Complainant's Civilian Progress Review Worksheet for the April 1 - November 30, 2008 time frame demonstrated that Complainant's performance on program elements and other performance factors was assessed against a scale, which ranged from "Needs Significant Improvement" to "Needs Little or No Improvement". A review of the Director's assessment of Complainant's duty performance showed that he either considered Complainant's performance to fall in the middle of the scale (rarely) or, more frequently, to need improvement or need significant improvement. Moreover, in the comments accompanying the Worksheet, the Director identified a number of substantive problems with Complainant's duty performance together with recommendations on how to improve in these areas.
As to claim 9, the Director denied that he had removed Complainant's responsibilities as his scheduler. The Director acknowledged that, on December 8, 2008, he sent Complainant an electronic mail message directing that she work with the Manager to develop a "workable and reliable scheduling process," because of several scheduling problems Complainant had caused. The Director further acknowledged placing "new limits" on his computer calendar, which he told Complainant would be removed once she explained the new process to him. However, the Director asserted that Complainant's responsibility for scheduling his appointments was never affected by this action, as he explained to Complainant in an electronic mail message; he had only removed Complainant's ability to modify the electronic version of his calendar. The Director claimed that he took this action because items regularly appeared or disappeared from his calendar without his knowledge or a clear explanation from Complainant.
A review of the electronic mail messages between Complainant and the Director with respect to this issue supports the Director's testimony. Specifically, we note that, in response to Complainant's electronic mail message informing him that she would forward all future appointments and calls to the Manager, the Director responded that she would continue to have the same duties and responsibilities that she always had, except that she would not be able to place things on his calendar without his permission.
With respect to claim 10, the Director stated that he did not know what Complainant meant by this allegation, as he was not aware of any discussion she had with SAF/Andrews Air Force (AAA) on that date; he had never changed her reporting official; and he was not aware of any action to develop a new Core Doc for Complainant. The Director noted that the Manager was SAF/SB's Director of Operations, and as such, on December 8, 2008, he had requested that she work with Complainant on scheduling processes with regard to his electronic calendar, due to repeated error and conflicts resulting in his having missed several high level meetings, among other problems. The Director asserted that he has continued to request that Complainant work with the Manager on scheduling because of ongoing scheduling conflicts and other problems whenever Complainant works on his calendar independently. However the Director said that neither Complainant's reporting official nor her duties and responsibilities had ever been changed.
In the present case, the incidents found to have occurred, even if presumed to have occurred exactly as claimed by Complainant, do not rise to the level of a hostile work environment. Rather, they appear to have been actions taken by Complainant's supervisor, in coordination with Personnel Specialists, in response to: Complainant's statement to the Director that she no longer wanted to work for him; her repeated failure to accept responsibility for scanning and copying a draft LOR; her repeated failure to provide the Director with assurances that no privacy laws had been violated by her actions; and her performance deficiencies. Furthermore, none of these actions were shown to have been motivated by any discriminatory animus based on Complainant's race or sex. Even if we considered Complainant to be challenging the dismissal of reprisal as a basis from the complaint, we find no indication that any action at issue was based on retaliation for prior protected activity.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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 (Nov. 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
September 19, 2012
__________________
Date
1 Complainant's complaint also included two additional issues and the basis of reprisal dated from May through August 2008. On February 20, 2009, the Agency issued a decision dismissing the two additional issues and the basis of reprisal. There is no indication in the record that Complainant challenged the dismissal of the two additional issues or the basis of reprisal with the Agency or raised the matter in the instant appeal. The Commission has the discretion to review only those issues specifically raised in an appeal. Abeijon v. Department of Homeland Security, EEOC Appeal No. 0120080156 (August 8, 2012). Accordingly, we will not address this matter in this decision.
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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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