0120114258
06-11-2013
Melissa A. Hedgecoth, Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Melissa A. Hedgecoth,
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120114258
Agency No. 2010062
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 16, 2011, 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., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager at the Agency's Fossil Generation, Development and Construction facility in Chattanooga, Tennessee. Complainant contends that she learned on March 31, 2010, that she was being paid less than her male coworkers. She maintained that C-1, Program Manager of Coal Combustion Project, and C-2, Senior Program Manager of CCP Dam and Safety received higher salaries than she did. She reports that she was paid $121,000, while C-1 was paid $128,000, C-2's salary was $126,000 and the General Manager's (GM) salary was $145,000. Complainant indicated that she and C-1 and C-2 were at the same level on the organizational chart and the three of them all reported to the same supervisor, the GM. Complainant noted that she had twenty years of ash handling experience with the Agency, and she was the most senior employee with Coal Combustion Project (CCP) experience. She has a Bachelor's Degree in Civil Engineering as well as a Master's degree in Engineering Maintenance. By contrast, C-1 and C-2 do not have Engineering degrees but have degrees in geology. Further, she maintains that after moving to the GM's group, she assumed greater responsibilities and accountability but her salary did not change. Complainant argues that she deserves a higher salary than C-1, C-2 and the GM because she has greater responsibilities, more experience and more education.
Complainant also indicated that it was around this time, i.e., March 31, 2010, that she requested information about why her title was listed a manager instead of senior manager. She was told that someone from Human Resources would look into the matter. According to Complainant, in 2008, she assumed the responsibilities of a retired senior manager but did not know that her title remained "manager," until March 2010. The record indicates that in April 2010, after she had initiated the EEO process, the Agency changed her title to senior manager.
On September 3, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when:
1. She learned that she was paid less than her male coworkers; and
2. She learned that her job title was manager instead of senior manager.
Complainant amended her complaint to also allege that she was subjected to a hostile work environment on the basis of her sex and in reprisal for prior EEO participation when: (1) on or about July 30, 2010, a statement was made "that the system is broken, that management doesn't trust [Complainant] and that [Complainant] doesn't trust management;" (2) on or about August 2, 2010, she learned that she was not being included in a meeting to discuss her organization's budget; (3) the GM sent an email to her direct reports without copying her on or about August 9, 2010; (4) the GM and another supervisor held a meeting with her on or about August 16, 2010, and issued a verbal warning to her; (5) the GM ignored her requests to wait before taking steps to remove her access to TVA on or about August 19, 2010; (6) on or about August 19, 2010, she learned that her badge and computer access had been taken away; (7) the GM told her employees on or about August 19, 2010, that they no longer reported to her but to him instead; (8) when she returned to work on or about August 24, 2010, the GM had already sent her a meeting notice to meet with him and Human Resources the following day; (9) when she met with the GM and another supervisor on or about August 25, 2010, she was given documented work expectations that had not been given to anyone else to her knowledge; (10) the GM sent an email to her direct reports without copying her on or about August 27, 2010; (11) on or about September 1, 2010, she learned that she was not being included in a meeting to discuss her organization's budget; (12) the GM sent an email to her direct reports without copying her on or about September 12, 2010: (13) on or about September 19, 2010, she learned that she was not being included in a meeting to discuss her organization's headcount; (14) the GM coordinated trips with Executive Management without including her, and specifically coordinated a trip on or about September 23, 2010, to Cumberland Fossil Plant to meet with her employees without including her; (15) the GM sent an email to her direct reports without copying her on or about September 26, 2010; (16) management requested an investigation of her allegations through an Employee Concerns representative who met with her on or about October 1, 2010, to discuss her findings; (17) the GM sent an email to her direct reports without copying her on or about October 15, 2010; (18) on or about October 20, 2010, the GM ordered a safety investigation of one of her employees without even telling her about it; (19) the GM only visits her employees when she is out of the office: and (20) the GM has commented to her employees that she is a "lame duck."
Following an investigation of this matter, the Agency, pursuant to Complainant's request, issued a final agency decision (FAD), which found that Complainant failed to establish that she was subjected to discrimination, or that the Agency's actions violated the EPA or that she was subjected to a hostile work environment.
The Agency found that Complainant failed to demonstrate that she was subjected to discrimination on the bases of her sex or prior EEO activity. The Agency argued that assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that while it is true that Complainant made less than the two comparators and the GM, they performed different jobs and were both hired by the Agency at higher pay grades. Complainant was an engineer while C-1 and C-2 were both geologists and the GM was her supervisor. Moreover, the Agency explained that a review of employee salaries at Complainant's level showed that she made more money than both men and women at her grade and when reviewing the compensation level of all Senior Managers she was in the middle of the group. The Agency found that Complainant failed to show that its articulated legitimate, nondiscriminatory reason was pretext for discrimination. Based on this reason, the Agency also determined that Complainant's EPA claim also failed.
With respect to Complainant's claim that she was discriminated against when her title was listed as a manager instead of senior manager, the Agency maintained that it articulated legitimate, nondiscriminatory reasons for its action. After a re-organization, her title was not changed but when it became known that the change had not taken place her title was changed to senior manager. The Agency explained that Complainant lost no benefits or pay because her title was manager.
The FAD also found that Complainant failed to show that she was subjected to a hostile work environment as the incidents complained of were not sufficiently severe or pervasive. The Agency asserts that Complainant's claims can be grouped into several categories that include: being excluded from meetings, being bullied by the GM, the GM excluding her from his communications with her employees; receiving verbal warnings; and having her access cut off to the Agency while she was on leave. The Agency maintained that the GM was new and had a different way of doing things than Complainant was used to. Complainant acknowledged that budget planning was the GM's domain but she had, in the past, attended meetings that dealt with her work unit. Further, the Agency indicated that the GM addressed employees directly instead of going through Complainant and the Agency maintains that there was no pre-conceived plan to visit workers only when Complainant was not there.
Further, the Agency maintained that Complainant was not bullied. The Agency explained that she received verbal warnings and was asked to attend meetings with the GM and Human Resources because of her behavior, which involved inappropriate emails either about the GM or emails that challenged his authority to her direct reports. Additionally, the Agency claims that Complainant's credentials were suspended because she was out on stress leave and the GM wanted her to be able to relax and not concern herself with her job until she was cleared to return. Once she returned her credentials were reinstated. Finally, the Agency maintained that Complainant was not allowed to employee one of the applicants of her choosing because he failed the leadership evaluation and a waiver was not granted for this applicant. The Agency argued that even considering all of these incidents as true, it has shown that the incidents were work related not based on Complainant's sex or prior EEO activity. In addition, the Agency stated that these matters, more importantly, 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 incorrectly found that she was not subjected to discrimination and a hostile work environment. Complainant contends that the GM treated her like a criminal when he locked her out of the system. She maintains that management's explanation that Homeland Security regulations required the lock out from Agency systems is not true as the Agency has not produced the document cited and it has not been used on any other employee. Further, Complainant contends that the Agency did not adequately investigate her claims as voice recordings that showed that management lied in their sworn statements but it was not considered. Complainant also contends that the GM gave her a "Less than Fully Adequate" rating, which was the only bad rating in her 21 year career. Complainant states that her performance review was not addressed in the Agency's final decision, or anywhere in their report.
Complainant maintains that the FAD did not address the numerous examples that she gave of HR holding her to a different standard. Complainant also maintains that she reported that C-1 and C-2 were allowed to drive an Agency vehicle home each day and basically live off the Agency's per diem but the Agency did not address this in the FAD.
On appeal, the Agency maintains that the FAD should be affirmed because Complainant has failed to show that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination or that she was subjected to a hostile work environment.
ANALYSIS AND FINDINGS
We find that even if we assume arguendo that Complainant established a prima facie case of discrimination and reprisal as to all bases, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that the records showed that Complainant's compensation was in the middle of all the workers at her level with some men earning more and some earning less than Complainant. Further, the evidence shows that although Complainant's title was not changed after a re-organization, the change was made after it became known. We find that Complainant failed to show that the reasons given by the Agency were pretext for discrimination. There was no persuasive evidence presented that indicated that discrimination was the reason the change had not taken place prior to April 2010.
Further, we find that Complainant failed to establish a prima facie claim under the Equal Pay Act. In order to be successful under the EPA, Complainant must show that she received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Corning Glass Works v. Brennan, 417 U.S. 188,195 (1974). See Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29 C.F.R. � 1620.14(a). We find that Complainant's argument with respect to the GM is disingenuous as the GM was her supervisor and had responsibilities that Complainant did not have. Similarly, the two comparators offered by Complainant did not have similar job duties as she herself pointed out. Complainant was an engineer while they are geologists. Complainant's claim therefore, fails because their responsibilities were vastly different.
With respect to Complainant's claims of harassment that lead to a hostile work environment, we note that 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 his 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6 (March 8, 1994).
We find, however, that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that appeared to be adverse to her; however, the Commission finds that Complainant has not shown that she was subjected to conduct that was sufficiently severe or pervasive enough to establish that a hostile work environment occurred. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. Finally, we find that most of the incidents presented to support Complainant's harassment claim are not "unwelcome verbal or physical conduct," but rather everyday workplace interactions, which include professional disagreements, differences in management styles, and personality conflicts.
Finally, with regard to several matters raised by Complainant's on appeal regarding the adequacy of the Agency's investigation, we note that she was given the opportunity to have a hearing before an EEOC Administrative Judge but she elected to not have such a hearing. Had Complainant elected to have a hearing, she could have requested evidence via discovery, cross-examined witnesses and we would have had the benefit of credibility determinations made by the Administrative Judge. As Complainant chose a FAD instead, we can only evaluate the facts based on the weight of the evidence presented to us. Based on that evaluation, we find that the preponderance of the evidence of record does not establish that discrimination occurred. Accordingly, 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 FAD.
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
___6/11/13_______________
Date
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0120114258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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