0120170601
10-11-2018
Josefina P.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josefina P.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120170601
Agency No. 2015-26055-FRA-02
DECISION
On November 30, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 3, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that she was subjected to discrimination or harassment as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant did not prove that she was subjected to discrimination and/or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security/Safety Specialist, GS-14 at the Agency's Federal Railroad Administration in Washington, DC. On December 30, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), religion (Christian), color (White), and reprisal for prior protected EEO activity when since the execution of a settlement agreement that resolved her prior complaint of discrimination on June 27, 2011, she has been subjected to hostile work environment/harassment on a continuing basis. Examples of the hostile work environment/harassment include, but are not limited to, the following discrete acts:
1. In approximately May 2014, she learned that she was not selected for the position of Supervisory Railroad Security Specialist advertised under Vacancy Announcement No. FRA.S-2014-0018,
2. Her work assignments continue to change without corresponding documented changes in her performance plan and job description;
3. Her supervisor of record often is rude to her, treats her in an aggressive and demeaning manner, and subjects her to unwarranted criticism;
4. Her supervisor is critical of her work schedule and her request to telework was denied;
5. She has been subjected to loud, vulgar language and disrespectful treatment by a coworker, and management failed to take appropriate corrective action;
6. The initial performance rating she received for the rating period ending May 31, 2014, was "achieved results" and not indicative of her true performance. Although the rating was eventually changed, she believes that the initial unfair rating was an act of harassment;
7. On September 29, 2014, she was issued a Letter of Reprimand; and
8, After she was assigned to a detail, she observed that someone had written, "Please don't come back this time" on the dry erase board outside of her cubicle.
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 Equal Employment Opportunity Commission Administrative Judge. 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.
The Agency dismissed claims 1 and 6, for failure to meet the 45-day time requirement pursuant to 29 C.F.R. � 1614.107(a)(2). With regard to claim 1, the Agency maintained that upon learning of her non-selection, Complainant had reasonable suspicion of alleged discrimination, which thereby triggered the forty-five-day time limitation period. The Agency explained that assuming arguendo that Complainant learned of her non-selection for the position on May 31, 2014 (the last day in May), her initial contact with an EEO counselor was not until October 14, 2014 - nearly five months later - which objectively and clearly was outside of the forty-five-day time limit.
Similarly, Complainant learned of her lower than expected rating on July 30, 2014. The Agency maintained that Complainant should have had a reasonable suspicion of discrimination on that date and therefore the forty-five-day time limitation was triggered. Again, Complainant did not contact an EEO Counselor until October 14, 2014 - two and one half months after signing the performance rating. The Agency found that Complainant did not reference or raise extenuating circumstances that would have prevented her from contacting an EEO Counselor.
The Agency argued that even if Complainant established a prima facie case of discrimination, management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim no. 2, the Agency indicated that Complainant's passport work was not taken away. The Agency explained that Complainant had requested developmental work and the Accident Division had a backlog, so, the Accident Division work was given to her as a training opportunity. For claim numbers 3, 5, 7, and 8, claims that involved behavioral issues; the Agency found with regard to claim 3, that her supervisor denied treating her in a disrespectful way. Management maintained that Complainant was never treated in an aggressive, demeaning, or rude manner by management or coworkers. In fact, regarding claim no. 5, the Agency maintained that it took appropriate action after Complainant complained that coworkers were speaking in a loud vulgar manner. Management talked to the entire office about the use of improper language in the office and acting professionally. Management also explained that Complainant was issued a Letter of Reprimand after she walked out of meeting that she was having with her supervisor. Complainant's supervisor charged her with being insubordinate because she had behaved in a similar manner on several other occasions. With regard to claim no, 8, management indicated that Complainant did not bring it to their attention that someone had written "please don't come back" on the board outside of her office.
Finally, with regard to claim no. 4, management explained that Complainant's request for telework was not approved because management wanted her to complete her training, after which they were going to revisit the request. The Agency maintained that Complainant did not show that the Agency's reasons were pretext for discrimination. Moreover, the Agency found that Complainant did not demonstrate that she was subjected to harassment as the incidents she complained of were normal work related incidents that were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency failed to adequately consider evidence that the Agency subjected her to a hostile work environment.
In response, the Agency contends, among other things, that the FAD should be affirmed as, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not demonstrate pretext for discrimination or that discriminatory animus was involved. Further, the Agency argues the incidents complained of by Complainant were not severe or pervasive enough to establish a hostile a hostile work.
ANALYSIS AND FINDINGS
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 Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all of her bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was listed above. We note, that even if we assume, without finding, that claims nos. 1 and 6, were timely, the Agency explained that Complainant was not selected for the position because, by her own admission, she did not do well during the interview and was not sent for referral. Complainant also did not show that she was so better qualified for the position than the selectee that discrimination could be inferred. Also, with regard to claim no. 6, wherein Complainant maintained that she was given a lower performance rating than she expected, the record shows that once Complainant articulated her accomplishments, her rating was changed to a higher rating. We find that Complainant has not shown that the Agency's reasons were pretext for discrimination.
Moreover, we find that the incidents complained of by Complainant, even if accurately stated, were everyday work place interactions, and were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). As the Commission has previous indicated, Title VII is not a civility code.
Finally, on appeal, we find that Complainant simply reiterated the arguments previously made, and that other than her conclusory statements, she has not provided any proof of her claims. We also find that the allegations made by Complainant were adequately addressed in the Agency's decision and no persuasive evidence was provided on appeal. Therefore, we find that Complainant has not proven her case.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination or harassment as she alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__10/11/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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