0120103276
12-16-2010
Glory Wilson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Glory Wilson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103276
Hearing No. 430-2008-00308X
Agency No. ARLEE07MAR02295
DECISION
On July 30, 2010, Complainant filed an appeal from the Agency's July
19, 2010, final order 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 Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Claims Examiner at the Agency's Uniform Business Office, Kenner
Army Health Clinic facility in Fort Lee, Virginia. On July 6, 2007,
Complainant filed an EEO complaint alleging that the Agency subjected
her to harassment on the bases of sex (female) when:
1. Between April 16, 2007 and June 4, 2007, she was subjected to verbal
harassment and threats of counseling by her supervisor (Supervisor); and
2. She received a written counseling statement on May 2, 2007, subject:
misconduct counseling.
Complainant subsequently amended her complaint alleging that she had
been subjected to additional events which constituted harassment based
on her sex and in reprisal for filing an EEO complaint under Title VII
of the Civil Rights Act of 1964. In support of her claim of harassment,
Complainant alleged that the following events occurred:
3. On July 29, 2008, the Supervisor accused Complainant of failing to
respond to messages from clinics in reference to DD 2569 forms;
4. On July 20, 2008, the Supervisor issued a counseling letter to
Complainant; and
5. On October 20, 2008, the Supervisor issued a written counseling to
Complainant.
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). Complainant
timely requested a hearing and the AJ held a hearing on October 28,
2009, and issued a decision on July 6, 2010.
The AJ noted that during the hearing, Complainant proffered testimony
from several co-workers and herself to show that the Supervisor treated
female employees more harshly than male employees. The AJ found that
the testimony was not probative for it consisted of conclusory statements
without specific examples. The AJ stated that the evidence presented by
Complainant and the co-workers showed that the Supervisor had problems
with employees who failed to follow his orders. The AJ held that the
conflicts between Complainant and the Supervisor were based on their
differences in opinion as to how Complainant's duties should be performed.
Therefore, the AJ concluded that there was insufficient evidence presented
by Complainant to establish that she was subjected to harassment based
on her sex. The AJ continued the analysis and found that Complainant
had not shown that allege events constituted a hostile work environment.
Further, to the extent Complainant claimed that she was subjected to
retaliatory harassment, the AJ determined that Complainant failed to
demonstrate that the Supervisor's alleged harassment occurred based on
Complainant's prior protected activity. Therefore, the AJ concluded that
Complainant failed to show that she had been subjected to a hostile work
environment based on her sex and/or prior protected activity.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9,
1999).
It is well-settled that harassment based on an individual's sex
and/or protected EEO activity is actionable. See Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment under those bases, the complainant must show that: (1) she
belongs to the statutorily protected classes and/or engaged in prior
EEO activity; (2) she was subjected to unwelcome conduct related to
her membership in those classes and her prior EEO activity; (3) the
harassment complained of was based on sex and/or prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance 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 Sys. Inc.,
EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record,
we find that the AJ properly determined that Complainant failed to
establish that the alleged events, taken as a whole, created a hostile
work environment. Further, the record supports the AJ's determination
that Complainant did not establish that the alleged harassment was based
on her sex and/or prior protected activity.
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
FAD adopting the AJ's findings and conclusions.
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
December 16, 2010
__________________
Date
2
0120103276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120103276