0520140092
02-13-2015
Kiera H., Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Kiera H.,
Complainant
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520140092
Appeal No. 0120131447
Hearing No. 550-2009-00190X
Agency No. 5K0M06013F13
GRANT OF RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120131447 (October 24, 2013). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). For the following reasons, the Commission reopens the appellate decision on its own motion, VACATES the decision in EEOC Appeal No. 0120131447 dismissing Complainant's appeal, and REVERSES the Agency's final order adopting the AJ's decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant's request meets the criteria for reconsideration; and (2) whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ) decision that Complainant failed to establish that the Agency discriminated against her on the bases of race, sex, pregnancy, and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Assistant, GS-7, with the Agency's Civilian Personnel Office, 951st Reserve Support Squadron, at the March Air Reserve Base (ARB), located in California.1 Report of Investigation (ROI), at 2. Complainant was hired as a probationary employee, beginning her employment on March 20, 2006.
On March 20, 2006, Complainant's first day, she informed her first-level supervisor (S1) (male, Hispanic) that she was pregnant, expecting her second child. Id. at 17. Complainant also informed S1 that she would need to miss work from time-to-time to attend pre-natal appointments. Id. Notwithstanding, S1 reportedly informed Complainant that he expected her to be at work every day and that he "knew how to fire people." Id. at 286. The next day, Complainant told the Personnel System Manager about S1's comments to her. Id.
After working for a period of time on her first day, Complainant began to feel ill due to the effects of her pregnancy, and advised S1 that she needed to go home early. Id. at 17. S1 advised Complainant that she could make up the time the next day. Id. at 269. However, Complainant did not return to work the next day and missed most of the remainder of the week due to pregnancy-related symptoms. Id. Complainant subsequently requested advanced sick leave for the days that she initially missed, but S1 denied her request. The next week Complainant approached S1, telling him that she went the Agency's Civilian Personnel Office (CPO), which stated that she was entitled to the advanced sick leave. Id. at 270. According to S1, he then contacted an employee with the CPO and told the employee that he (S1) felt that granting Complainant advanced sick or annual leave was not a good practice, and he "did not want to develop a pattern." Id.
As a result, Complainant went "over S1's head," and contacted his supervisor, the Brigadier General, who approved the advanced leave request. Id. at 270. Also according to S1, the Brigadier General told him that he (the Brigadier General) he knew that S1 would not be happy that he approved the leave. S1 stated that he did not agree with Brigadier General but the Brigadier General had already approved the leave so S1 "left it alone so as not to put [the Brigadier General] in a position to revisit the subject." Id. at 271.
An employee with the CPO subsequently telephoned S1, saying that Complainant requested that the leave be designated as advanced annual leave. S1 describes this matter:
Complainant did not come in and talk to me. When [Complainant] asked me about the advance leave status, she came in and demanded that she get the advance leave. [Complainant] made it clear in the first two weeks that she was going to tell me what to do and she would go to whomever she had to in order to get her way.
Id. at 271.
On April 3, 2006, Complainant requested leave on April 3, 2006, for a doctor's pre-natal appointment dated April 6, 2006, and for training on April 7, 2007. However, S1 denied her requests. S1 reportedly was loud and aggressive with Complainant in the denial of these requests. S1 stated that he told Complainant that he needed to be notified ahead of time if she were going to take leave; that if Complainant demanded leave again, he would disapprove it; and that he "wanted her to treat me with respect." Id.
After S1 denied her leave request dated April 3, 2006, Complainant told the Major
General and the Co-Supervisor about her doctor's appointment and training. Both the Major and the co-supervisor approved Complainant's leave request. On April 26, 2006, Complainant e-mailed S1 asking if she could leave two hours early to catch a flight to New Jersey where she was scheduled to hold a military seminar, but S1 denied the request. Id. at 266g. As a result, Complainant had a meeting with the Brigadier General on April 26, 2006, discussing S1's treatment of her, believing that it was harassment. Id. at 321. Complainant also expressed her fear about a miscarriage and felt that S1 was subjecting her to discrimination. Id. According to Complainant, the Brigadier General told her that S1 had an issue working with women as evidenced by the way he treated a prior female employee who left the Agency. Id.
Meanwhile on April 19, 2006, the Budget Technician noticed that Complainant was looking at the Computer Service Unit (CSU) web application, a computer system that shows confidential disciplinary personnel records of employees. Id. at 287b. At the Budget Technician's request, Complainant pulled up the Budget Technician's disciplinary personnel file for her to look at, which was blank. Id. Complainant did not pull-up other employees' records. Hr'g Tr., Vol. 2, at 60. The Budget Technician mentioned the matter to the Co-Supervisor and the Financial Analyst, and also told S1 about the incident. The Budget Technician's concern was that previously an employee needed a social security number to access such confidential records, but now the system appeared to allow someone to get access to the records with just a name. ROI, 287b. According to the Budget Technician, Complainant had indicated that the reason she was in the CSU system was because S1 wanted her to become familiar with it. Id.
Thereafter, S1 requested that the Budget Technician write a statement about the CSU matter. Id. The CPO also apparently told the Budget Technician that she could be disciplined if she did not write the statement as S1 requested. Id. In a short memorandum dated May 9, 2006, the Budget Technician described the April 19, 2006, matter and wrote, "I really didn't feel comfortable with [Complainant] having access to everybody's records like that." Id. at 44. However, the Budget Technician believed that she was forced to write the statement. The Budget Technician states:
I felt that I was forced to write this statement and that I was set up. [S1] told me to write a statement. I asked why I had to do so since I had told him about it. Then personnel told me I needed to write the statement. The statement in the file, that I was shown, was not my original statement. [S1] told me I needed to the narrow the times down. I was upset because I did not think this was a big deal and it was escalated into a big deal. I was told by personnel . . . that as a government employee I could be disciplined if I did not cooperate in providing a statement.
Id. 287b.
After having a meeting with Complainant about the matter, S1 disabled Complainant's civilian government e-mail account without warning. In an e-mail to S1 dated May 23, 2006, Complainant requested a meeting to discuss the disabling of her e-mail account because it was prohibiting her from completing her assigned duties. Id. at 34. The next day on May 24, 2006, S1 held a meeting with Complainant, stating that he was looking to terminate her and that she would be locked out of her computer until such time. Id. at 274.
Meanwhile, on May 22, 2006, the Chief of Civilian Personnel received a copy of a drafted letter to terminate Complainant. Id. at 291c. After reviewing the letter, the Chief, in a telephone call, advised S1 that the letter was vague and that if Complainant's absences were for military duty or pre-natal care, there was no support for the termination. Id. at 291d. S1 told the Chief that the reason for the termination regarded Complainant by-passing him to request leave. Id. On May 25, 2006, via e-mail, the Chief again advised S1 that he had no case on Complainant and advised him not to terminate her. Id at 291e. Therein the Chief wrote to S1, "Don't do it, based on what I've seen so far." Id.
Notwithstanding the Chief's guidance, S1 went forward and issued a "Notification of Employment Termination" on June 7, 2006, with his signature. Id. at 176. The Termination noted that Complainant had demonstrated an aggressive and adversarial manner since the first week of her employment. Id. The letter also noted that Complainant was unable to safeguard sensitive personnel information as evidenced by the incident on April 19, 2006. Id.
More than two months later, on August 29, 2009, the Agency decided to rescind the termination of Complainant. Management decided to cancel the termination after receiving guidance from its labor attorney, who advised returning Complainant to duty. Id. at 291f. Management also had been advised that Complainant had filed an EEO complaint. Id. Management initially considered placing Complainant elsewhere away from S1's supervision, but ultimately decided against it, deciding that both Complainant and S1 should still work together when Complainant returned. Id. S1 did not agree with management's decision to reinstate Complainant. S1's Deposition, Vol. III, at 349.
Complainant accepted the Agency's offer for reinstatement and returned to her position in late September 2006, but worked under protest, not wanting S1 to be her supervisor any longer. A week later, Complainant went on maternity leave in October 2006 and was scheduled to return from the leave in January 2007. Before her return from maternity leave, Complainant, through her attorney, requested that she be assigned a new supervisor or, in the alternative, be allowed to telework. ROI, at 337. The Agency denied both requests and S1 placed her in an absent without leave (AWOL) status from January 21, 2007, through February 3, 2007, and from February 4, 2007, through February 17, 2007. S1 placed Complainant in AWOL status even though she had requested leave without pay (LWOP) for this period of time. After being given AWOL, rather than return to work from maternity leave, Complainant resigned.
On July 3, 2006,Complainant filed an EEO complaint2 alleging that the Agency subjected her to discrimination and harassment on the bases of race (Caucasian), sex (female, pregnancy), and reprisal for prior protected EEO activity when:
1. S1 subjected her to a hostile work environment during the period of March through June 2006;
2. She was terminated from her HR Assistant position on June 14, 2006;
3. On August 29, 2006, her termination was rescinded and she was reinstated to the HR Assistant position under S1;
4. The Agency did not clear her personnel record of the prior termination as they agreed to do in August 2006;
5. A Civilian Performance Appraisal dated October 1, 2006, was issued with ratings of "5" (fully successful) without her knowledge or approval;
6. She was not permitted to telework;
7. She was placed in AWOL status from January 22, 2007, to February 2, 2007; and
8. She was forced to resign, resulting in a constructive discharge.
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, which the AJ held on July 8 and 9, 2009. The AJ thereafter issued a decision in the Agency's favor on December 18, 2012, finding no discrimination.
In her decision, the AJ noted that the majority of the incidents that gave rise to Complainant's harassment claim related to S1's concern that Complainant went over his head for leave requests. The AJ credited S1's testimony concerning his conversations with Complainant, and found that he did not treat Complainant in a demeaning manner based on her gender. The AJ found that S1's conduct from March through May 2006 was not severe or pervasive enough to constitute a hostile work environment. The AJ further found that testimony from other employees failed to reflect that S1 treated men more favorably than women. The AJ additionally indicated that, to the extent Complainant alleged that S1 subjected her to a hostile work environment due to her pregnancy, his was conduct was not severe or pervasive enough.
The AJ additionally found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's termination, which Complainant failed to establish were pretextual. The AJ noted that, even though Complainant's leave usage initially was a factor in S1's assessment as to whether to terminate Complainant, it was only one factor. The AJ noted that it was the opinion of employee relations that the termination could be sustained without raising the issue of leave usage. The AJ noted that, notwithstanding the Budget Technician's testimony that she did not tell S1 that she saw Complainant viewing personnel records, S1 testified credibly based on his demeanor and consistency of statements. The AJ found that Complainant's use of the CSU understandably eroded S1's trust in her. The AJ indicated that Complainant failed to prove that the Agency violated the Pregnancy Discrimination Act with respect to her leave requests. The AJ also noted that the Agency denied Complainant's request to telework on January 16, 2007, and instructed her to report to work on January 22, 2007, but Complainant failed to do so. The AJ found no evidence that the decision to place Complainant on AWOL was motivated by discrimination or retaliation. Lastly, that AJ found that these matters did not support Complainant's claim of constructive discharge.
RECONSIDERATION
In our previous decision, Appeal No. 0120131447, we dismissed Complainant's appeal as untimely, finding that Complainant filed her appeal one day after the requisite 30-day time limit. We noted that Complainant received the Agency's final order on January 28, 2013, but Complainant's appeal, which did not have a legible postmark, was received by the Commission through the mail on March 5, 2013. Taking into account the five-day extension, we found that Complainant's appeal was filed one-day after the 30-day time limit.
In her request for reconsideration, Complainant, through her attorney, argues that her appeal in fact was timely and should be considered on its merits. Complainant states that the postmark was in fact legible, which shows that the appeal was mailed on February 26, 2013. We note that Complainant's attorney submits a copy of the appeal, which shows the legible February 26, 2013, postmark. We also note that a search of the USPS tracking number contained in the record for the appeal shows that Complainant's documentation was first tracked on February 28, 2013, in California, seven days before the expiration of the time limit.
EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the Commission must be filed within 30 calendar days after complainants receive notice of the Agency's decision. The regulation further provides that a document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b). Here, Complainant received the Agency's final order on January 28, 2013, and established that she filed her appeal on February 26, 2013, the date of the legible postmark contained on the appeal. Complainant has thus shown that she filed her appeal within the 30-day time limit.
Therefore, we find that Complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. We will now address the merits of Complainant's complaint below.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserts that the AJ erred in denying her June 18, 2009, motion to draw an adverse inference against the Agency. Complainant maintains that she filed this motion because S1 intentionally destroyed evidence for the Agency's benefit. Namely, Complainant believes that S1 intentionally shredded her personnel file, which is pertinent to the outcome of this case. Complainant also asserts that this case was originally assigned to a prior AJ who scheduled a hearing for three days and not two days as the second AJ did. Complainant also mentions that it took the AJ three and one-half years to issue a decision after the hearing, so it is unclear how the AJ based a good part of her decision upon the demeanor of S1 at the hearing, especially because the proceedings were not video recorded.
Complainant maintains that she established a hostile work environment and points to various matters which S1 took part in. Complainant further maintains that the Agency's reasons were pretext for discrimination. Namely, Complainant indicates that S1 refused to grant her advanced leave for pre-natal appointments even though he was required to do so. Complainant also states that S1 moved to terminate her even though the Chief advised him not to do so. Complainant contends that S1initially included her leave usage in his Notice to Terminate, and did not fire her until shortly after she filed her EEO complaint. Complainant notes that the Chief reprimanded S1 because he was not forwarded the Notice of Termination prior to the action. Complainant additionally notes that the Budget Technician was forced to draft the letter which implicated her for disclosing confidential information. Complainant notes that S1 claimed that she disclosed numerous employees' private information, which was untrue because she only gave the Budget Technician her own information. Complainant asserts that there is no evidence that she was insubordinate, and when the Agency reinstated her on August 29, 2006, it was an admission of liability. Complainant contends that when she was reinstated the Agency failed to remove the negative references from her personnel file. Complainant states that management could have reassigned her to a different supervisor, but failed to do so. Complainant asserts that many employees believe that S1 treats men more favorably than women.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment (Termination)3
Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Thus, the PDA extended to pregnancy Title VII's goals of "[achieving] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of . . . employees over other employees" EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, EEOC Notice 915.003 (July 14, 2014) (Pregnancy Guidance) (citing California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 288 (1987)); 42 U.S.C. � 2000e(k)(1978); 29 C.F.R. � 1604.10. In the Appendix to Part 1604 Questions and Answers on the Pregnancy Discrimination Act, the Commission makes clear that "[t]he basic principle of the Act is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is, therefore, protected against such practices as being fired, or refused a job or promotion, merely because she is pregnant . . . ."
Claims brought under the PDA are examined using traditional disparate treatment analysis. Bernardi v. U.S. Postal Serv., EEOC Appeal No. 01954090 (Aug. 21, 1997). As such, 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 initially must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case of disparate treatment on the basis of sex (pregnancy), Complainant must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009). In the instant case, Complainant was a pregnant female who was terminated from her position. Complainant also has established an evidentiary link between her protected class and the termination as explained below. We therefore find that Complainant has presented a prima facie case of sex discrimination.
The burden now shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 254. Specifically, S1, in the notice of removal, noted that since the first week of her employment, Complainant demonstrated aggressive and adversarial behavior towards management and exhibited dissatisfaction towards him as supervisor. ROI, at 176, S1 further noted that he lost confidence in Complainant's ability to safeguard sensitive information due to the incident on April 19, 2006, wherein Complainant viewed disciplinary personnel records on the CSU. Id. This explanation is sufficient to meet the Agency's very light evidentiary burden.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves, 530 U.S. at 14; Hicks, 509 U.S. at 519. We find that Complainant has clearly done so in the present case, and that the AJ erred in finding otherwise. In this respect, we find that the AJ did not consider Complainant's evidence that was offered to establish that the Agency's articulated reason is unworthy of belief. We note that the Supreme Court has held that the fact-finder may find pretext where he or she determines that the Agency's articulated reason is unworthy of belief. Reeves, at 133. In this regard, we find that Complainant has presented credible evidence to establish that the Agency's nondiscriminatory reasons are unworthy of belief.
In particular, we find that Complainant has sufficiently established that S1's explanation that she was terminated due to her adversarial behavior and her failure to safeguard sensitive information on April 19, 2006, is unworthy of belief. In finding so, we note that the record clearly reflects that S1 was aware that Complainant did not misuse the CSU program as alleged. Specifically, we note Complainant's job duties gave her access to the CSU program, and that S1 had instructed Complainant to become familiar with it. Hr'g Tr., Vol. 1, at 160-61. The record reflects that on April 19, 2006, the Budget Technician asked Complainant if she could view her own personnel file and Complainant complied. The Budget Technician's personnel file was blank and Complainant did not show other employees' records. Hr'g Tr., Vol. 2, at 60-61, ROI, 287b. Although the Budget Technician reported the matter to S1 and her co-supervisor, her concern was not that Complainant did something wrong or engaged in misconduct, but that the CSU program could easily show employees' information without typing their social security numbers. ROI, 287b. We note that the Budget Technician averred that she felt that S1 forced her to write the statement against Complainant about the matter. Id. The Budget Technician stated that she felt "set up" and was upset because the April 19, 2006, incident was no "big deal." The Budget Technician testified:
After I talked to [S1], I didn't feel comfortable because I think they were making more out of it than it really was. And I think they took a lot of stuff out of context . . . .
Hr'g Tr., Vol. 2, at 62-63.
After S1 accused Complainant of wrongdoing, he disabled her government e-mail account without any form of progressive discipline or warning.
As S1 says himself, he was unhappy with Complainant's use of leave, but we note that much of this leave was used for pre-natal sickness and appointments. ROI, 270-71. We note that S1 stated that every time he denied her leave, Complainant went over his head to seek approval for the leave. As S1 also stated, he did not agree with management's approval of her leave requests. We note that S1's initial draft of Complainant's Termination letter referenced Complainant's use of leave. Hr'g Tr., Vol. 2, at 339, ROI, at 178. Therein, S1's wrote, "[Complainant's] excessive leave usage, while approved, reflects an unacceptable pattern of attendance." ROI, at 178.
Additionally, on Complainant's first day in her position, after telling S1 she was pregnant with her second child, S1 told her that he "knew how to fire people and had no problem doing it." We note that the Personnel System Manager averred that Complainant told him the next day about these comments. ROI, at 286. Further, the Chief of Civilian Personnel told S1 that he had no case on Complainant and advised him not to terminate her, but S1 went forward anyway. Further, although S1 disagreed, management decided to rescind the termination based on the recommendation of the Agency's labor attorney and out of concern that Complainant had filed an EEO complaint. ROI, 291f. We lastly note that the Budget Technician testified that S1 did not treat women as well as men, and a former female employee also opined that S1 had issues working with women. Id. at 287b, 12.
We find that S1's dubious reasons for Complainant's termination are clearly not supported by the evidence in the record. See Pregnancy Guidance, at I.B.1 (noting that evidence indicating disparate treatment based on pregnancy can include evidence casting doubt on the credibility of the employer's explanation for the challenged action). We note that the AJ found that S1 testified credibly based on his demeanor and consistency of statements. Normally, the Commission defers to the AJ on questions of credibility where it is based on a witness's demeanor and conduct. However, we do not defer to the AJ's credibility determination here because the objective evidence in the record described above so contradicts the testimony of S1. See EEO MD-110 at Ch. 9, � VI.B.; see also Gathers v. U.S. Postal Serv., EEOC Request No. 05890894 (Nov. 9, 1989) (noting that "deference is not automatic, and when there is sufficient evidence on record which suggests the credibility determination to be erroneous, deference will not be given."). Therefore, based on the above, we that Complainant has established that the Agency's reasons were pretext for discrimination based on sex. We find that the Agency's reasons are unsupported by the record and unworthy of belief. As such, we find that Complainant has established that she was subjected to disparate treatment based on her sex when she was terminated from her position.
Harassment / 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 McKinnev v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title Vll must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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).
Upon review, we find that S1's actions towards Complainant were based on her sex/pregnancy. The record reflects that S1 denied Complainant's leave requests related to pre-natal sickness and care, and stated that he was unhappy with management's approval of her requests. S1 also cited to Complainant's leave use in his initial draft of Complainant's Termination letter. The record shows that Complainant was threatened with termination, which ultimately was carried out during her pregnancy. It is evident that management, after fearing that S1's termination was based on Complainant's sex/pregnancy, decided to rescind the termination. Further, the Budget Technician testified that S1 did not treat women as well as men, and a former female employee also opined that S1 had issues working with women. Therefore, we find that Complainant has established the first three prongs of the prima facie case of a hostile work environment.
Objectively Hostile or Abusive Work Environment
Turning now to the fourth prong, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris, 510 U.S. at 17, 21; see also Oncale, 523 U.S. 75 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. at 17, 23.
Here, we find that the Agency's conduct was sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment. We find that a reasonable person would find that the cumulative effect of S1's actions created a hostile work environment. We note that S1's actions against Complainant included denying Complainant leave, threatening her with termination even on her first day, falsely accusing her of misconduct, coercing a coworker to write a statement against her, deactivating her e-mail account, and terminating her. Also, we note that, after believing that S1 wrongly terminated Complainant, management decided to reinstate Complainant, but did not assign her a new supervisor away from S1. The record reflects that after Complainant was reinstated and returned during the later stages of her pregnancy, the hostile environment continued under S1. We note that the Budget Technician averred:
The few days Complainant was in before her maternity leave tension was high. Sometimes when I came in, Complainant told me I should have been in earlier to hear the fireworks. It seemed to happen almost every day that [Complainant and S1] would get into it.
ROI, at 287d.
One week after Complainant returned, she went on maternity leave and was scheduled to return to the office in January 2007. While out on maternity leave, Complainant requested that management assigned her a new supervisor or that she be allowed to telework. However, management denied both requests and began to charge Complainant with AWOL instead of requested LWOP when she failed to return to the office as scheduled from maternity leave. Rather than return to the work environment with S1, Complainant resigned.
Liability
We now consider whether the Agency is liable for this harassment. In the context of supervisory liability, employers are subject to vicarious liability for unlawful harassment by supervisors. Farragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action.
In the present case, S1's actions towards Complainant culminated in a tangible employment action, namely S1 signed and issued Complainant her notice of termination. As such, we find that the Agency is liable for the hostile work environment created by the actions of the supervisor based on Complainant's sex/pregnancy.4
Constructive Discharge
We note that Complainant also asserted that the harassment resulted in constructive discharge. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and, (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995); Christoph v. Dep't of the Air Force, EEOC Request No. 05880575 (Apr. 6, 1990). After careful consideration, viewing all of the circumstances presented here, we find that the discriminatory hostile work environment created by S1 and management was sufficiently severe as to result in objectively intolerable working conditions, and that Complainant reasonably felt compelled to resign because of these conditions. See Welch v. Univ. of Tx. and Its Marine Science, 659 F.2d 531 (5th Cir. 1981) (finding constructive discharge when supervisor expressed that he did not want to work with the female employee and demanded to know when the female employee was leaving). Here, S1, by his actions, which included terminating Complainant's employment, clearly expressed his hostility toward Complainant due to her sex/pregnancy. The Agency denied Complainant's request to be assigned a different supervisor, thereby knowingly placing her back into a hostile work environment. We find that a reasonable person in Complainant's position would have found the working conditions intolerable, and therefore conclude that Complainant has established that she was constructively discharged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision is not supported by substantial evidence in the record. The Commission VACATES the decision in EEOC Appeal No. 0120131447 and REVERSES the Agency's final order adopting the AJ's decision finding no discrimination. Because this is the first time that Complainant's complaint has been addressed on the merits, we will provide the parties with reconsideration rights.
ORDER
The Agency is ORDERED to take the following remedial action:
(1) Within thirty (30) calendar days from the date this decision becomes final, the Agency shall offer Complainant reinstatement to the position of HR Assistant or a comparable position, retroactive to the date of termination. The Agency shall assign Complainant away from the management official indentified as S1 in this decision. Complainant must respond to the Agency's offer within fifteen (15) calendar days of receipt. Should Complainant reject the offer of reinstatement, entitlement to back pay shall terminate as of that date of refusal.
(2) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue checks to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition(s) for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
(3) The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
(4) The Agency is directed to provide a minimum of eight (8) hours EEO training for the management official(s) responsible for the discrimination against Complainant within ninety (90) days of the date this decision becomes final. The training shall address their responsibilities with respect to eliminating discrimination in the workplace, with an emphasis on Title VII as it relates to sex and pregnancy discrimination.
(5) The Agency shall consider taking disciplinary action against the responsible management official(s). The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action.
(6) The Agency shall post a notice of the finding of discrimination, as detailed below.
(7) The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Civilian Personnel, 951st Reserve Support Squadron, March Air Reserve Base facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 13, 2015
Date
1 Complainant was enlisted in the military as well as being civilian employee.
2 The final amendment of Complainant's EEO complaint was on February 16, 2007.
3 To the extent that the Agency contends that the termination issue is moot because it was later rescinded, we note it cannot be said that the effects of the alleged discrimination have been eradicated. In her formal complaint, Complainant requested compensatory damages. Because the Agency failed to show that Complainant was not entitled to such damages, the Agency cannot allege that the termination is moot. See Schlieter v. U.S. Postal Serv., EEOC Appeal No. 07A30007 (Sept. 29, 2003) (finding that although letter of warning was rescinded, the matter was not moot because complainant requested compensatory damages).
4 Given our conclusion that Complainant established that she was subjected to discrimination based on sex/pregnancy, we need not address the other alleged bases, as under the circumstances of this case, a finding on the additional bases would not entitle her to any greater relief.
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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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