0120103533
02-04-2011
Elaine C. Goldberg, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Elaine C. Goldberg,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103533
Agency No. ARSHAFT3409JUL03166
DECISION
On August 30, 2010, Complainant filed an appeal from the August 4, 2010
final Agency decision (FAD) 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 deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Diagnostic Radiology Technician at the Agency’s Tripler Army
Medical Center (TAMC) facility in Honolulu, Hawaii.
On September 8, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against and subjected her to a discriminatory
hostile work environment in reprisal for prior protected EEO activity
under Title VII when:
1. On July 15, 2009, Complainant was denied administrative leave by her
supervisor (S1) to prepare for alternative dispute resolution of her
EEO complaint;
2. On July 6, 2009, she was charged as Absent Without Leave (AWOL);
3. On July 1, 2009, she was charged as AWOL;
4. On June 30, 2009, she was denied administrative leave to prepare for
her Fact-Finding Conference (FFC) and was charged as AWOL; and,
5. On May 29, 2009, she was charged for eight hours of annual leave by
her second-level supervisor (S2) even though she had worked for four
hours that day.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).
Initially, the FAD assumed arguendo that Complainant had established a
prima facie case of discrimination on the alleged basis. Nonetheless,
the FAD determined that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim
(4), the FAD determined that S1 testified that because Complainant did
not come into work and had not requested administrative leave in advance,
she was charged with AWOL on June 30, 2009. Further, Complainant did
not submit an administrative leave request until July 7, 2009, after the
pay period had closed. S1 asserted that Complainant had been counseled
multiple times on the Agency’s leave procedures and she was charged
with AWOL because she failed to comply with those procedures.
Regarding claim (5), S1 stated that he and S2 were on leave when
Complainant submitted her leave request for the period of May 29, 2009
– June 29, 2009, and therefore they had no knowledge that Complainant
worked four hours on May 29, 2009. Complainant’s leave request did
not indicate that she worked four hours on May 29, 2009; therefore,
S1 entered the leave hours into the system as Complainant stated on her
leave request. After Complainant reported to S1 that she worked on the
day in question, S1 investigated her claim and decided to restore four
hours of her annual leave despite finding no definitive proof that she
had worked on that day.
Next, the FAD found that Complainant failed to show that the Agency’s
reasons were pretextual. Additionally, the FAD determined that the
alleged incidents were not sufficiently severe or pervasive to constitute
a discriminatory hostile work environment. Accordingly, the FAD held
that Complainant had not been discriminated against or subjected to a
hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that it has always been the Agency’s
policy to give her time off to prepare for EEOC hearings; however, she
was not always able to give advance notice. Additionally, Complainant
alleges that S2 would only grant her administrative leave if she provided
a note from her attorney which violated her privacy. Finally, Complainant
alleges that an Agency attorney advised S1 and S2 to charge her with
AWOL for any and every reason because of her prior EEO complaints.
Accordingly, Complainant requests that the Commission reverse the FAD.
The Agency requests that the Commission affirm the FAD.
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
(EEO MD-110), at 9-15 (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”).
Disparate Treatment
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).
Complainant must initially establish a prima facie case by demonstrating
that he or 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. 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, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the Agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether Complainant
has shown by a preponderance of the evidence that the Agency's actions
were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (4), S1 asserts
that Complainant did not report to work on June 30, 2009, and had not
requested administrative leave or any other kind of leave prior to
that day. ROI, FFC, at 30. S1 adds that Complainant did not submit
a leave request for that day until July 7, 2009, after the pay period
had closed. Id. S2 confirms that the proper procedure for requesting
administrative leave was for Complainant to contact her supervisor in
advance and inform him of her need for the leave. ROI, FFC, at 47 - 48.
S2 avers that Complainant had been counseled previously that it was
inappropriate to call in the day that she needed to take administrative
leave and not report to work. Id. at 48. S2 adds that Complainant had
been counseled multiple times regarding the proper procedures and was
therefore charged AWOL after she again failed to follow those procedures.
Id. at 47.
Regarding claim (5), S2 confirms that he and S1 were out on leave when
Complainant submitted her leave request for May 29, 2009 – June 29,
2009. ROI, FFC, at 46. S2 affirms that Complainant was charged according
to the leave form she submitted. Id. at 47. When Complainant returned,
she reported that she had actually worked four hours on May 29, 2009. Id.
S2 avows that he asked S1 to confirm Complainant’s attendance and had
him change it accordingly. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden of
establishing that the Agency’s stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency was
motivated by a discriminatory reason. Id. (citing St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). As to Complainant’s contention on
appeal that a prior Agency attorney advised S1 and S2 to mark her as AWOL
for any reason, the record contains no evidence in support of this claim.
The record establishes that the Agency simply charged Complainant with
AWOL after she failed to follow Agency procedures regarding requesting
administrative leave in advance. Thus, aside from Complainant’s
bare assertions, the record is devoid of any persuasive evidence
that discrimination was a factor in any of the Agency’s actions.
At all times the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons, and that the Agency acted on the basis
of discriminatory animus. Complainant failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show
that she was discriminated or retaliated against as alleged.
Hostile Work Environment
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. U.S. Postal Serv., 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 Sys., 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 Sys., 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 environment harassment, Complainant
must show that: (1) he belongs to a statutorily protected class; (2) he
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.
After a review of the record, the Commission finds that the incidents
alleged do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that she was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment
and that she also failed to prove that the Agency’s actions were
unlawfully motivated by her prior protected activity. Even assuming
that the alleged incidents would be sufficiently severe or pervasive
to constitute a hostile work environment, there is no evidence that
any of them were motivated by discriminatory animus. Accordingly, the
Commission finds that failed to show that she was subjected to unlawful
discrimination or harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the FAD.
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
February 4, 2011
Date
1 Complainant subsequently withdrew claims (1), (2), and (3) at the
Fact-Finding Conference. See ROI, Fact-Finding Conf., at 4-5.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120103533
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103533