0120110234
03-24-2011
Rebecca S. Harris, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
Rebecca S. Harris,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120110234
Hearing No. 550-2009-00241X
Agency No. FDICEO080012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's August 16, 2010 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Review Examiner (Field), GS-14, at the Agency's Division of Supervision
and Consumer Protection facility in San Francisco, California Field
Office (SFFO). On July 28, 2008, Complainant filed a formal complaint
alleging that the Agency discriminated against her on the bases of race
(Caucasian), national origin (American), sex (female), color (white),
disability (Reynaud's Syndrome/Stroke), and age (60) when:
1) From 2002 through 2005, on an unspecified date in mid-year 2006,
and from August 2007 through her retirement on December 31, 2007, she
was denied a reasonable accommodation for her disability.
2) From 2002 through her retirement on December 31, 2007, Complainant
was subjected to a hostile work environment in connection with the
following incidents: a) Complainant's supervisors denied her a reasonable
accommodation for her disability; b) Complainant's supervisors provided
her with little to no supervisory guidance or assistance with a workload
that had quadrupled, and exhibited negative behavior towards her such as
excess criticism, not looking at her, and abruptly leaving when meeting
with her; c) Complainant's supervisors belittled her by snickering and
pointing at her hands, which were blue due to her disability (Reynaud's
Syndrome); d) After a January 2007 audit revealed that Complainant's work
contained minor spelling and grammatical errors, the Field Supervisor (FS)
began scrutinizing Complainant's work and demanded that she spend 100%
of her time in the Regional Office; e) In early July 2007, the FS moved
Complainant's office to a location near his office; f) On July 30, 2007,
the FS issued Complainant a letter of warning about her performance;
and g) When Complainant's father passed away, the FS did not express
sympathy for her loss.
3) On December 31, 2007, Complainant involuntarily retired from the
Agency due to the denial of her request for a reasonable accommodation
and/or due to the intolerable hostile work environment.
The record reflects that Complainant was supervised from 1992 through
2006 by a different team of supervisors. She got along very well with
those supervisors. Beginning in September 2006, her first-line supervisor
became the FS. At about the same time, the Regional Compliance Supervisor
became her second-level supervisor.
In 2001, Complainant notified agency management of her
previously-diagnosed condition of Reynaud's Syndrome, a vascular disorder
that results in extreme constriction of peripheral blood vessels.
This condition did not prevent Complainant from performing the essential
functions of her Review Examiner position. As a GS-14 Review Examiner,
Complainant was responsible for overseeing, reviewing, correcting,
and approving the Reports of Examination completed by Bank Examiners.
She was expected to function with significant independence, and she was
the only GS-14 employee reporting to the FS.
In February 2007, Agency Headquarters personnel completed a routine
audit of the Compliance Division Reports of Examination. Of the fifteen
audited reports, five contained critical problems significant enough to
earn SFFO an "unsatisfactory" rating. All five of those reports had been
approved by Complainant. In furtherance of orders from Headquarters to
develop and implement an Action Plan to correct the deficiencies noted
in the audit, in March 2007, the FS increased oversight of Complainant's
work personally reviewing each of the reports she oversaw, each item
of correspondence she prepared, and the quarterly progress reports.
To facilitate this necessary increase in supervision, Complainant agreed
to stop telecommuting, and her office was moved to the same floor as the
FS's office which was where the rest of his staff already was located.
Complainant's work remained substandard, however, despite the increased
supervision. The FS issued a Letter of Warning to Complainant on July 30,
2007, citing her continuing problems in analysis, written communications,
and bank reports, all of which were similar to the problems previously
cited in the audit.
In August 2007, Complainant suffered a minor stroke diagnosed as a
transient ischemic attack (TIA). On September 12, 2007, supported by
documentation dated August 25, 2007, from her physician, Complainant
received permission to work part-time and telecommute three days per
week until her health improved. Complainant then requested and received
approval to take sick leave from September 17, 2007 through October 15,
2007, based on an unsigned and undated letter from another physician
stating that she would require at least three months to recover.
One month later, on October 15, 2007, Complainant returned to work.
Upon request, she provided medical clearance from her physician dated
October 17, 2007, allowing her to work full time as long as she could
telecommute three days per week. The medical clearance also allowed
Complainant to travel for Agency business to Washington, D.C. and Palm
Springs, California in late October and early November.
On November 30, 2007, Complainant requested permission to telecommute
full time. To support this request, she attached the same medical
documents she had provided in October 2007, the October 17, 2007 letter
from her physician, which did not specify a need to telecommute five days
per week. On December 4, 2007, the FS requested further documentation
to support the accommodation request, but Complainant never provided
any more medical documentation. On December 3, 2007, prior to the FS's
request for additional documentation and any Agency decision regarding
her request to telecommute full time, Complainant signed an Application
for Voluntary Retirement to be effective December 31, 2007.
Complainant filed an appeal with the Merit Systems Protection Board
(MSPB) claiming that her retirement was involuntary and caused by agency
harassment and failure to accommodate her disability. The MSPB conducted
a hearing with witnesses and cross examination in which Complainant fully
participated. In a decision dated May 6, 2008, the MSPB determined that
Complainant's retirement was voluntary and that she was not forced to
retire either because she was denied accommodation of her disability
or because she was subjected to harassment creating a hostile work
environment. It does not appear that Complainant appealed the MSPB
decision to this Commission.
At the conclusion of the investigation into her EEO complaint, Complainant
was provided with a copy of the report of investigation and notice of
her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing within the time frame provided in 29
C.F.R. � 1614.108(f).
On July 15, 2010, the AJ issued a decision by summary judgment, finding no
discrimination. In reaching this decision, the AJ determined that even if
Complainant could establish a prima facie case, the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found that
Complainant was provided a reasonable accommodation. When Complainant
requested a modification to this accommodation on November 30, 2007, her
first-level supervisor, the FS, intended to request further documentation
in support of her request. However, Complainant retired effective
December 31, 2007, thereby ending the interactive accommodation process as
well as the Agency's duty to accommodate. Therefore, the AJ found that
Complainant cannot show that she was denied reasonable accommodation,
forced to retire, or otherwise subjected to discrimination based on any
physical impairment. With regard to Complainant's harassment claim,
the AJ found that Complainant's claim that she was harassed from 2002
until 2006 was undermined by her admission that she got along well with
her supervisors during that time frame. The AJ also found Complainant's
allegations of harassment to be vague and conclusory. Complainant's
belief that her work was unfairly criticized, even if assumed to be
true, did not rise to the level of creating a hostile work environment.
Although Complainant disagreed with management actions, she did not
present any evidence to indicate that discriminatory harassment took
place, or that management took any action on the basis of Complainant's
race, color, national origin, sex, age, or disability.
In conclusion, the AJ found that the events of which Complainant
complains, either individually or collectively, fail to rise to the level
of unlawful harassment prohibited by the ADEA, Rehabilitation Act or
Title VII. Most importantly, there the AJ found no evidence that any of
the actions or decisions of agency management were motivated by unlawful
reasons. Complainant failed to establish that any of management's reasons
for its actions were pretextual or unworthy of belief. The AJ concluded
that Complainant failed to establish discrimination under either the
theory of disparate treatment or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the AJ improperly
entered summary judgment in this matter. She attacks the credibility
of Agency witnesses and further asserts that the AJ did not adequately
address her claims of harassment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
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. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). 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 Systems, 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.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected
classes, management continuously subjected her to a hostile work
environment. However, we find that Complainant has not shown that she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving her protected classes, or the harassment complained of
was based on her statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where Agency management took actions that
were either adverse or disruptive to her, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent Complainant is alleging disparate treatment with respect
to her claims, even assuming Complainant is a person with a disability,
she has not shown that the Agency's reasons for its actions were a
pretext for discrimination.
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 Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
March 24, 2011
__________________
Date
2
01-2011-0234
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120110234