0120122405
10-12-2012
Dora M. McFadden, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dora M. McFadden,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122405
Agency No. ARFTHUA11MAY01925
DECISION
Complainant timely filed an appeal from the Agency's 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 properly found that Complainant had not been subjected to hostile work environment harassment on the bases of sex, race/national origin, religion, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Technical Writer-Editor, GS-12, at the Agency's Materiel Command, Communications-Electronics Command, Communication Security Logistics Activity, Information Assurance Division, in Fort Huachuca, Arizona. On June 27, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race/national origin (Hispanic), sex (female), religion (atheist), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on March 23, 2011, the team leader accused her of not knowing how to use Microsoft Word and required her and another female co-worker to participate in training he provided on Microsoft Word;
2. on April 18, 2011, the team leader assigned two unrealistic tasks to her to be completed by April 20, 2011, and demanded constant updates in order to set her up for failure;
3. on June 28, 2011, she discovered that the team leader questioned a coworker about her work performance;
4. on July 1, 2011, she asked the team leader to send a sample verification plan to her, but he did not do so until July 29, 2011;
5. on August 10, 16, and 19, 2011, the team leader tasked her with more demanding and difficult work outside of her current performance objectives; and
6. on August 10 and 19, 2011, the team leader assigned her duties from other team members that were outside of her position description.
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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the Agency found that the incidents above were not sufficiently severe or pervasive to constitute harassment. The Agency noted that the evidence of the record supported the team leader's conclusion that Complainant was not proficient with Microsoft Word. The Agency noted that the team leader's inquires into the status of Complainant's projects were not so frequent as to interfere with the performance of her duties. The Agency noted that there was no evidence that the team leader treated Complainant less favorably than other employees. The Agency further noted that while the team leader may have made a comment about Complainant's performance to a junior employee, there was no evidence that he made such comments on a recurring basis. The Agency also noted that there was no evidence that the team leader intentionally failed to provide Complainant with the sample verification plan in a timely manner. The Agency noted that there was no evidence that Complainant was assigned tasks outside of her position description. The Agency found no evidence that management's actions were motivated by discriminatory animus.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that management officials provided false and untruthful testimony. Complainant also contends that the Agency's investigator improperly obtained testimony from witnesses without allowing her to be present.
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, 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
Harassment/Hostile Work Environment
To establish a claim of hostile work 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 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 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 on Harris v. Forklift Systems, Inc. at 6 (March 8, 1994).
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. We find, however, that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that appeared to be adverse to her; however, the Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive enough to rise to the level of harassment. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. The Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
With respect to Complainant's contention that management officials submitted false testimony, we note that as Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Further, we note that, under 29 C.F.R. � 1614, a hearing is "an adjudicatory proceeding that completes the process of developing a full and appropriate record." Hence, if Complainant felt the investigative record was inadequate, she had the right to request a hearing before an Administrative Judge. In this instance, Complainant did not. We also note that we previously addressed Complainant's dissatisfaction with the instant investigation in Dora M. McFadden v. Department of the Army, EEOC Appeal No. 0120121639 (July 20, 2012). As a result, the Commission finds that Complainant has not established that she was subjected to hostile work environment harassment as alleged.
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.
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
October 12, 2012
Date
2
0120122405
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122405