0120091631
08-09-2011
Linda Kelly, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (National Park Service), Agency.
Linda Kelly,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 0120091631
Hearing No. 550-2007-00410X
Agency No. NPS-07-0116
DECISION
On March 6, 2009, Complainant filed an appeal from the Agency’s February
3, 2009, 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 accepts the appeal, 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 was a
maintenance worker in the Division of Maintenance Management at Yosemite
National Park. On September 12, 2006, her first-level male supervisor
summoned her because two male co-workers had complained that she had been
“going around spreading vicious rumors” about their finances. At the
meeting, Complainant denied that she had gossiped about the co-workers.
Her denials were verbally challenged by one of the co-workers, who was
present at the meeting.
At the end of the meeting, the first-level supervisor had Complainant
sign a letter, acknowledging that she was “being cautioned to
refrain” from gossiping and spreading unfounded rumors. The letter
noted that the Agency had previously cautioned Complainant about such
behavior, referencing a January 29, 2003 memorandum about her gossiping.
That memorandum had been the subject of Complainant’s previous EEO
complaint, which was still pending at the time of this meeting.1 The
September 12, 2006 letter warned that the next occurrence of misconduct
would result in a disciplinary action.
Complainant filed an EEO complaint, alleging that the Agency discriminated
against her on the bases of sex (female) and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on September 12, 2006, management issued her a letter, accusing
her of gossiping, and required her to attend a meeting with both her
supervisor and accuser present.
For remedies, Complainant requested, in part, for the Agency to pay all
of her legal expenses “in this hostile work environment case.”
The Agency accepted for investigation the claim that Complainant was
subjected to a hostile work environment on the bases of sex (female)
and reprisal for prior EEO activity when she was issued a letter of
counseling for gossiping on September 12, 2006.
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. The Agency filed a motion for summary
judgment, and Complainant opposed the motion. The AJ issued a decision
without a hearing, finding that the Agency did not discriminate against
Complainant as alleged.
At the outset, the AJ found that Complainant’s claim failed to state
a claim of discrimination based on sex or reprisal. The AJ reasoned
that Complainant was not an aggrieved employee because the September 12,
2006 meeting and letter did not constitute a present harm or loss with
respect to a term, condition, or privilege of employment. The AJ found
that the meeting and letter constituted an informal attempt to correct
Complainant’s behavior and that it had no present consequence to her
employment. Such counseling, according to the Agency’s disciplinary
policies, was not disciplinary action. Furthermore, counseling letters,
according to personnel policies, were not to be maintained in an
employee’s personnel file or used as prior discipline to enhance any
future discipline.
The AJ also reasoned that Complainant failed to state a claim of
retaliation because the counseling, with no present detrimental
consequence, was not enough to deter a reasonable person from engaging
in EEO activity. Even if Complainant had stated a claim of retaliation,
the AJ found that Complainant could not establish that management’s
actions were motivated by her prior EEO activity rather than her history
of gossiping. According to the AJ, the fact that the 2006 counseling
letter referenced a 2003 admonishment for gossiping did not indicate
that management was motivated by Complainant’s prior EEO activities
related to that admonishment.
Finally, in a footnote, the AJ found that the September 12, 2006 meeting
and letter were not sufficiently severe or pervasive to constitute a
hostile work environment based on Complainant’s sex.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant proved that the Agency subjected her to discrimination
as alleged.
CONTENTIONS ON APPEAL
Complainant contends that the AJ erred in dismissing her disparate
treatment claims for failure to state a claim. She argues that the
September 12, 2006 meeting and letter constituted a present harm or
loss with respect to a term, condition, or privilege of employment,
because there were concrete consequences attached to the counseling:
the next occurrence of gossiping would result in a disciplinary action.
Complainant also maintains that there are genuine issues of material
fact in dispute, such as whether Complainant can establish pretext by
showing that management deviated from personnel policies by failing to
fairly investigate the co-workers’ complaints about gossiping. The
supervisors’ affidavits indicated that they did not inquire about the
specific dates, times, and places in which Complainant allegedly gossiped,
and they never asked Complainant for her version of events, which deviated
from established personnel policies. Instead, the supervisors based their
decision to counsel Complainant on generalized statements and accusations
that she had gossiped. According to Complainant, such a rush to judgment,
while ignoring the Agency’s procedures on investigating and deciding
disciplinary actions, constitutes evidence that management was motivated
by an impermissible bias against her.
Finally, Complainant maintains that the counseling was severe and
pervasive enough to establish a hostile work environment, because she
has suffered lasting psychological damage as a result of the counseling.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo the legal and factual conclusions of the AJ
and Agency. See 29 C.F.R. § 1614.405(a) (stating that a “decision
on an appeal from an Agency’s final action shall be based on a de
novo review . . .”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9,
1999) (providing that an administrative judge’s “decision to issue
a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)]
will be reviewed de novo”).
The Commission is free to accept (if accurate) or reject (if erroneous)
the factual conclusions and legal analysis of the AJ and Agency, including
the ultimate fact of whether intentional discrimination occurred, and the
legal issue of whether any federal employment discrimination statute was
violated. See id. at Chapter 9, § VI.A. (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”).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the Agency's final
order, because the AJ’s issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred. Although the letter indicates
that there would be future consequences if Complainant, allegedly,
engaged in further acts, we, like the AJ, do not find that there was a
present harm to her employment situation such that she stated a claim
of discrimination based on either sex or retaliation.
Complainant also argues that the AJ erred in issuing summary judgment
in the Agency’s favor on her hostile work environment claim because
the oral and written counseling was sufficiently severe or pervasive
to create a hostile work environment. To demonstrate severity, she
includes medical documents showing her individualized medical harm.
Even though Complainant subjectively feels that the counseling was severe
enough to substantially affect her work environment and create an abusive
environment, this by itself is not sufficient to prevail.
To establish a hostile work environment harassment claim, a complainant
must show, in part, that she was subjected to unwelcome conduct that
was “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In determining
whether the unwelcome conduct was sufficiently severe or pervasive,
the Commission evaluates the harasser’s conduct from the objective
viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 at 6 (Mar. 8, 1994). If the challenged conduct would not
substantially affect the work environment of a reasonable person in the
victim’s circumstances, no violation should be found.
We find that the AJ appropriately issued summary judgment in the
Agency’s favor on the hostile work environment claim because the oral
and written counseling did not constitute conduct that was sufficiently
severe or pervasive, when evaluated from the objective viewpoint of
a reasonable person in Complainant’s circumstances. A hostile work
environment claim generally requires a showing of a pattern of offensive
conduct. A single incident or isolated incidents of offensive conduct
or remarks generally do not create an abusive environment. If the single
incident is unusually severe, that may be sufficient to create a hostile
work environment. The more severe the harassment, the less need to show
a repetitive series of incidents.
Here, it is undisputed, however, that Complainant was subjected to a
single incident of oral and written counseling. Nothing in the record
suggests that Complainant was subjected to unusually severe or offensive
conduct during the meeting, such as acts of physical aggression,
intimidation, or hostility. Because this single incident was not
unusually severe, we determine that the AJ did not err in finding that
the counseling was not sufficiently severe or pervasive to establish
discriminatory hostile work environment harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency’s final.
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
___8/09/11_______________
Date
1 See Kelly v. Dept’ of the Interior, EEOC Appeal No. 0120063554
(Nov. 13, 2006).
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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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