0120101307
08-28-2012
Shannon R. Day-Hill, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
Shannon R. Day-Hill,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120101307
Agency No. ATF200700233
DECISION
On January 29, 2010, Complainant filed an appeal from the Agency's January 12, 2010, 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. 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 decision which found that Complainant failed to prove that she was subjected to discrimination as she alleged.
ISSUE PRESENTED
Whether Complainant was subjected to disparate treatment and a hostile work environment on the bases of her sex, parental status, and involvement in the EEO process.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Special Agent at the Agency's Washington Field Division in Washington, D.C. On February 5, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), parental status1 and reprisal for prior protected EEO activity when:2
1. a. On March 2, 2007, she was issued an unacceptable mid-year performance rating, placed on a performance improvement plan, and issued a letter of counseling;
b. On March 6, 2007, March 22, 2007, and April 2, 2007, her requests to be removed from her supervisor were not granted;
c. On March 26, 2007, her supervisor ordered her to take five hours of annual leave; and
d. On May 16, 2007, she was issued a letter of reprimand.
2. Complainant also contends that she was subjected to a hostile work environment on the bases of her sex, parental status, and reprisal when:
a. On May 2, 2006, her supervisor accused her of attempting to circumvent his authority when she contacted the Firearms Instructor Coordinator;
b. On February 5, 2007, her supervisor yelled at her for leaving an operation due to childcare needs;
c. On February 25, 2007, her supervisor questioned her whereabouts;
d. On February 26, 2007, after a meeting with the Assistant Special Agent in Charge, her supervisor threatened her and others during a group meeting;
e. From March 2, 2007, through March 26, 2007, Complainant was required to meet with her supervisor each morning to provide an agenda and submit an email in the afternoon detailing her daily accomplishments;
f. On March 9, 2007, her supervisor made the inappropriate remark "pull over a chair and sit right next to me;"
g. On March 12, 2007, she was subjected to inappropriate touching when her supervisor touched the badge around her neck; and
h. On March 14, 2007, her supervisor made the inappropriate remark "finally we are alone."
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that even if Complainant had established a prima facie case of discrimination on the bases of sex and reprisal, the Agency articulated legitimate nondiscriminatory reasons for its actions. The Agency indicated that with regard to issue (1a), the issuance of an unacceptable mid-year performance rating, being placed on a performance improvement plan (PIP) and being issued a letter of counseling, the Agency explained that these actions were based on Complainant's work performance. Management stated that Complainant had notice of her declining work performance since December 2006, and this was an attempt to get her back on track. Regarding issue (1b), Complainant's request to be transferred, management indicated that following Complainant's request an investigation was conducted regarding the request. Management explained that the investigation did not find any bases for her transfer, but Complainant was transferred nonetheless because of the mistrust between Complainant and her supervisor. With regard to issue (1c), Complainant was ordered to take five hours of annual leave because she failed to attend a scheduled training. Further, regarding issue (1d), Complainant was issued a letter of reprimand for failing to follow instructions because she failed to take the five hours leave as instructed. The Agency determined that Complainant failed to show that its nondiscriminatory reasons were pretext for discrimination.
With regard to Complainant's claims regarding being subjected to a hostile work environment, Complainant alleged that her supervisor made two sexual comments and engaged in one offensive touching, which are encompassed in issues f, g, and h. The Agency maintained, however, that the record did not support her contentions regarding these matters. According to the Agency, the Supervisor indicated that he asked Complainant to sit down next to him so that she could see the corrections that he had made on the computer screen, he denied making the comment "finally we are alone," and he denied touching Complainant's badge. The Agency found that other than Complainant's assertions there was no evidence to support these claims.
The Agency also stated that Complainant's remaining harassment claim, for the most part, was related to Complainant's work performance and conduct and not to discriminatory animus. Management indicated that the issues Complainant identified as harassment involved the Supervisor criticizing Complainant for circumventing his authority to get out of attending a training session, Complainant and the Supervisor yelling at each other after Complainant yelled at the Supervisor in front of agents from ATF and FBI when she wanted to leave early; Complainant not keeping the Supervisor informed of where she was working; the Supervisor telling staff to allow him to first try to settle conflicts before reporting them to the second-line Supervisor; and the Supervisor requiring Complainant, after she was put on a PIP, to report to him each morning and evening so that he could keep track of her agenda and accomplishments. The Agency maintained that these incidents were not because of her protected bases and were not severe or pervasive enough to establish a hostile work environment. Accordingly, the Agency found that Complainant's claim of a hostile work environment failed.
CONTENTIONS ON APPEAL
Complainant made no arguments on appeal. The Agency requests that its FAD be affirmed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
ANALYSIS AND FINDINGS
Claim (1)
To prevail in a disparate treatment claim such as this, 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 must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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, 441 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that even if we assume arguendo that Complainant established a prima facie case of discrimination, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions as indicated above. There is nothing in the record that demonstrates that the Agency's reasons are not worthy of credence. We further find that there is nothing in the record to show that the Agency's proffered reasons for its actions are a pretext for discrimination.
Claim (2)
Harassment/Hostile Work Environment Claim
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).
With respect to incidents 2(a)-(e), Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. 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. 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.
With respect to Complainant's claims pertaining to incidents 2(f), 2(g) and 2(h), there is simply no evidence to support her contention that these matters occurred as alleged. According to the Agency, her supervisor indicated that he asked Complainant to sit down next to him so that she could see the corrections that he had made on the computer screen, he denied making the comment "finally we are alone," and he denied touching Complainant's badge. In so finding, we note that, in accordance to Complainant's wishes, we do not have the benefit of an Administrative Judge's findings and credibility determinations after a hearing, and therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
CONCLUSION
Based on a thorough review of the record, we 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
__8/28/12________________
Date
1 Parental status is not a basis of discrimination covered under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, the Equal Pay Act, or the EEOC's regulations.
2 Originally, Complainant's claim also included the following claim: On March 26, 2006, her supervisor assigned her to assist with the execution of a search warrant while she was seven months pregnant. The Agency dismissed this claim for untimely EEO Counselor contact as Complainant first contacted an EEO Counselor in February 2007, and this incident is outside of the 45 day time limit. Upon review, we agree that this claim was properly dismissed as untimely.
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0120101307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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