Lidia B.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 7, 2019

0120180245 (E.E.O.C. May. 7, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lidia B.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120180245 Hearing No. 451-2014-00174X Agency No. ARCCAD13JUL02479 DECISION Complainant timely 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 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue presented is whether substantial evidence in the record supports the EEOC Administrative Judge’s (AJ) finding that Complainant did not establish that she was subjected to a hostile work environment based on her sex, disability, and protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Machinist, WG-10, at the Agency’s Metal Processing Division, Directorate of Manufacturing/Process Production at 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. 0120180245 2 the Agency’s Army Depot in Corpus Christi, Texas. Report of Investigation (ROI), at 196.2 Complainant, a Gulf War veteran, was diagnosed with Gulf War maladies in 1991 due to chemical exposures, causing her to experience migraine headaches, fibromyalgia, chronic pancreatitis, Post Traumatic Stress Disorder (PTSD), and major depression. In April 2013, Complainant was temporarily assigned to the Plating Machine Shop to train on the operation of grinding machinery, among other duties. ROI, at 296-297, 403. A Coworker (C1) was assigned to train Complainant on these respective duties in the Plating Machine Shop. Id. at 403. However, Complainant felt that C1 made inappropriate comments about her disability. Specifically, according to Complainant, when she and C1 were discussing the furlough, C1 made the comment to her that she was fortunate to be getting an extra disability check. Hearing Transcript (Hr’g Trans.), at 21, 25. On another occasion, C1 also apparently commented that people with handicapped permits should park in handicapped spaces rather than occupying non- handicapped spots. Id. at 20-21. On June 7, 2013, Complainant sent an email to the Branch Chief Supervisor who served as C1’s first-level supervisor (S1). ROI, at 132-133. In the email, Complainant wrote, in pertinent part, that C1 had directed her to mop the floor every Friday, but she could not mop due to her disabilities, caused by her status as a war veteran. Id. Complainant also wrote that she began to cry because C1 continued to ask her mop the floor, and she felt that C1 was subjecting her to a hostile work environment for repeatedly asking her to do so. Id. Complainant reportedly started mentioning to various employees that C1 was mistreating her. Id. at 415-416. S1 proceeded to conduct an investigation into C1’s comments and the fact that Complainant was asked to mop. However, during S1’s investigation, it was reported to S1 that Complainant had engaged in inappropriate behavior when she performed a “lap dance” for a male employee, among other things. Id. at 176. On June 14, 2013, S1 issued both Complainant and C1 a Memorandum for the Record (MFR) for creating a disturbance. Id. at 138, 160. Therein, S1 wrote that both Complainant and C1 created a disturbance resulting in an adverse effect on morale and production. S1 also noted to both Complainant and C1 that: Creating a disturbance towards a co-worker is a very serious matter and will be not be tolerated at any level. If this behavior should continue disciplinary action will be considered as spelled in the table of penalties. Your cooperation with this matter is required and expected. Id. 2 The page numbers refer to the “bates stamp” numbers on the very bottom center of each page. 0120180245 3 On June 17, 2013, S1 moved Complainant away from the Plating Shop back to her permanent position in the Main Machine Shop building. Hr’g Trans., at 69-70. S1 testified that he felt Complainant had been sufficiently trained on the grinding machinery, and he also felt that it was in everyone’s best interest as she was making employees in the Plating Machine Shop uncomfortable, including C2 and other employees. Id. at 67. On October 16, 2013, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female); disability; and reprisal for prior protected EEO activity when: 1. C1 directed her to mop the work area even though she informed him of her disability and management failed to take action to stop the harassment; and 2. S1 wrote her up about her behavior, returned her to the Main Machine Shop, and threatened her with disciplinary action.3 Following 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. The AJ thereafter held a hearing on June 6, 2017, and issued a decision on August 9, 2017. In his decision, the AJ specifically noted that in April 2013, Complainant accompanied inspectors on a safety walk wherein she was told that the floors needed to be mopped. The AJ observed that the Safety Council found that the fluids on the floor was a safety issue, and therefore everyone was required to sweep and mop the floor to take care of the problem. The AJ noted that C1 did not require Complainant to mop the floor during her training period and Complainant admitted that she was never actually required to mop. The AJ noted that Complainant only complained that she was subjected to a hostile work environment because she was asked to mop and not because she actually did so. The AJ also noted that it was at this time that S1 was informed that Complainant had performed a lap dance for a coworker (C2). The AJ noted that C2 corroborated C1, testifying that Complainant performed the dance as alleged. The AJ nevertheless noted that both Complainant and C1 were given MFRs and put on notice that if their behavior continued, disciplinary action could follow. The AJ observed that on June 17, 2013, S1 moved Complainant back to her permanent assignment in the Main Machine Shop building because he felt she had finished her training. The AJ therefore found that Complainant did not establish that she was subjected to retaliation when she was moved back to the Main Machine Shop, and was issued the MFR. The AJ further observed that Complainant alleged she was subjected to harassment when she asked if she could move her car and C1 responded, “Well, you have a handicap sticker, park in the handicap spot.” The AJ noted that C1 reportedly stated that Complainant was fortunate that she received a disability check while everyone is on furlough. 3 Complainant only alleged the basis of reprisal with respect to claim 2. 0120180245 4 The AJ found, however, that Complainant did not establish that C1’s comments to her were severe or pervasive enough to rise to the level of a hostile work environment. 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. Complainant filed the instant appeal. CONTENTIONS ON APPEAL Complainant’s Brief on Appeal On appeal, Complainant, through her attorney, contends that in spite of her disabilities, C1 demanded that she mop the floor in violation of her permanent medical restrictions. Complainant asserts that she reported to S1 that C1 was harassing her by asking her to mop the floor, and she reported that C1 further made several inappropriate discriminatory comments to her and another disabled employee. Complainant maintains that S1 issued her the MFR in reprisal for reporting the discriminatory behavior by C1, and that even though both she and C1 were both issued with MFRs, she was the only one who was moved from her assignment in the Plating Shop. Complainant further maintains that she was wrongly accused of and investigated for performing a lap dance for an employee, which she argues was clearly in reprisal for complaining that C1 had been subjecting her to a hostile work environment. Complainant additionally asserts that mopping was never required of her position in the Plating Shop and C1 asked her to mop because he thought people with PTSD were “faking it.” Complainant states that during the approximately six weeks that she trained with C1, he complained that she should only use handicapped parking, told her that she was lucky to be receiving a disability check, and attempted to force her to mop against her restrictions. Complainant moreover states that C1 complained about another Machinist using handicapped parking. Complainant asserts that C1’s comments to her and the other Machinist were clearly severe or pervasive enough to amount to a hostile work environment. Complainant also contends that C1’s comments to the Machinist drove the Machinist away from the Plating Shop because he felt badgered by C1 when he parked in a regular space instead of a handicapped space. Complainant argues that the Machinist’s testimony supports her statements that C1 was in fact subjecting disabled individuals to harassment. Complainant moreover argues that there is nothing in the record to support S1’s assertion that she was going around the shop making negative statements about C1. Complainant nevertheless asserts that S1, in issuing her the MFR for apparently making such statements, attempted to discourage her from complaining about discrimination. Complainant further maintains that S1 took written statements with respect his investigation into claims that she performed a lap dance, but he did not take any written statements when he investigated the issues of discrimination raised by her against C1. 0120180245 5 Agency’s Response In response, the Agency states that both Complainant and C1 were issued the MFRs on the same date for creating a disturbance. The Agency asserts that substantial evidence in the record supports the AJ’s determination that that S1 issued Complainant the MFR because she had engaged in inappropriate behavior when she danced for C2, and also later grabbed his arm. The Agency asserts that C2 decided to discuss the unwelcome dance incident himself after Complainant grabbed his arm on June 12, 2013, and after he found out there were other witnesses to the dance. The Agency maintains that the testimony of S1 and C2 provides evidence in the record to support the AJ’s findings of no retaliation. The Agency specifically asserts that Complainant did not dispute that she engaged in a dance or put her hand on C2’s arm. The Agency additionally states that there is credible testimony from S1 that he only moved Complainant from the Plating Shop to the Machine Shop on June 17, 2013, because he felt she had completed her training, and therefore he returned her to her permanent assignment. The Agency further argues that evidence in the record shows that mopping was one of the duties of the Plating Shop because coolant mist would accumulate on the machines and on the floor. The Agency argues that Complainant was nevertheless not forced to mop by C1, and he instead simply told Complainant to talk it over with S1. 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. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Hostile Work Environment The Commission notes that 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 0120180245 6 Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994) (Enforcement Guidance). 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) 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. 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. In the instant case, the Commission finds that the AJ’s finding that Complainant failed to establish that she was subjected to a hostile work environment is supported by substantial evidence in the record. Specifically, we find that the record supports the AJ’s determination 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 protected classes. Specifically, we find the record supports the AJ’s conclusion that Complainant was not targeted by C1 when she was asked to mop the floor. In so finding, we note that other employees were asked to mop the floor as well due to coolant accumulating on the floors. Hr’g Trans., at 78-79. Further, there is no dispute that Complainant never actually mopped the floor after she told C1 and S1 that her disabilities prevented her from doing so. As such, Complainant has not established that C1 was motivated by discriminatory animus when he asked her to mop the floor. Further, we find the record supports the AJ’s conclusion that C1’s reported comments about Complainant’s handicapped parking and disability check were simply isolated comments that were not severe or pervasive enough to meet the standard necessary to establish a hostile work environment. In so finding, we note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). In addition, we note that Complainant did not dispute that she performed the dance for C2, as alleged. We note that C2 testified that Complainant grabbed his hand and sat him down on his chair and started dancing. Hr’g Trans., at 28. C2 testified that the dance was not welcome, he told her to stop, and he felt it was inappropriate. Id. at 130-132. C2 also testified that he felt assaulted by Complainant when she grabbed his arm on another occasion and asked him to mind his own business. Id. at 132-133. 0120180245 7 Other employees in the Plating Shop also complained about Complainant’s behavior and said that she was making them feel uncomfortable as well. Moreover, the record reflects that Complainant was only assigned to the Plating Shop on a temporary basis to receive training. Id. at 70. As such, we find that the record reflects that S1’s decisions to issue her the MFR and move her away from Plating Shop were not motivated by retaliatory animus. Therefore, we find that substantial evidence in the record supports the AJ’s determination that Complainant did not establish that she was subjected to a hostile work environment based on her protected classes, 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 order implementing the AJ’s decision finding that Complainant was not discriminated against as 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. 0120180245 8 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 May 7, 2019 Date