Sharon R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionDec 12, 20170120150838 (E.E.O.C. Dec. 12, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharon R.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120150838 Agency No. ARPOLK12JUL02914 DECISION On December 6, 2014, Complainant 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 November 6, 2014, 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 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. Our review is de novo. 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 Child Youth Program Assistant at the Child Development Center at Fort Polk, Louisiana. Complainant initiated contact with an EEO Counselor on July 19, 2012. On November 9, 2012, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of her national origin (German), disability (knee injury), age (52), and in reprisal for her prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act. She made the following claims: 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. 0120150838 2 1. Complainant claimed age and national origin discrimination when on May 9, 2012, her Supervisor issued her an annual performance appraisal with an overall rating of “Satisfactory” in her employment with the Directorate of Family, Morale, Welfare and Recreation. 2. Complainant claimed that she was discriminated against on the basis of her national origin when from June 12, 2012 to July 19, 2012, her Supervisor harassed and subjected her to a hostile work environment, and her coworker removed German language posters from the classroom walls and caused lesson plans to only be in English and Spanish. 3. From July 16-27, 2012, her Supervisor scheduled her for fewer hours and later shifts than a Hispanic coworker. 4. Complainant claimed that she was subjected to reprisal when on August 6, 2012, the Faculty Director reassigned her from Room 120 to Room 118 of the Child Development Center. 5. Complainant claimed that she was discriminated against based on her disability when on October 25, 2012, the Faculty Director harassed her by calling her slow. Claims (1-5) were accepted for investigation. Complainant also raised two additional claims: receiving on December 12, 2011, a written counseling regarding CPR certification; and from January 17, 2012 to February 2, 2012, a coworker signing Start Smart childcare logs with Complainant’s name without her permission. The Agency dismissed these two claims pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that Complainant failed to initiate contact with an EEO Counselor in a timely manner. 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 Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. The record reveals that Complainant had been a Child Youth Program Assistant since April 2010. With regard to her rating of “Satisfactory” on her performance appraisal, Complainant claimed that many of her coworkers received a rating of “Outstanding.” Complainant’s Supervisor denied that she prepared the performance evaluation and stated she only signed it. Complainant’s Second-level Supervisor asserted that the “Satisfactory” rating was more than appropriate considering Complainant’s regular tardiness and unfriendly relationships with her colleagues which affected work quality. 0120150838 3 With respect to the removal of German posters from the classroom wall, the Supervisor stated that the posters on the wall with numbers in German were not removed. According to the Second-level Supervisor, numerical words in German were added to the wall but German words were not removed by the Supervisor. The Second-level Supervisor further stated that the items Complainant chose to hang on the walls and ceilings were not always in accordance with regulations. The Second-level Supervisor noted that Complainant hung paper birds from the ceiling that were made by her daughter. According to the Second-level Supervisor, this created a safety hazard because they blocked camera views within the room. Additionally, they violated regulations which state that they should have been made by the children in the room. The Second-Level Supervisor stated that Complainant was reminded to take them down, but she did not comply. The Second-level Supervisor explained that she boxed them up after they were observed by the CYS Coordinator. As for the lesson plans, Complainant stated that she had been in charge of Room 120 but that after she missed several days of work, a Hispanic coworker was sent to work in the room. According to Complainant, the coworker was placed in charge of the classroom and she required that all lesson plans be in either English or Spanish. Friction soon developed between Complainant and her coworker with disagreements taking place in front of the children. Complainant claimed that the former Director promised her the Lead position in the classroom. Complainant also resented the fact that the Supervisor and the coworker would speak Spanish in her presence in the classroom. According to the Supervisor, upon receiving complaints from Complainant, she corrected the coworker and asked Spanish-speaking employees to be mindful about speaking Spanish when others are around. The Supervisor asserted that Complainant never informed her that she believed she was harassing her. With respect to allegedly receiving later shifts and fewer hours than her coworker, Complainant stated that the fewer hours occurred from July 16-27, 2012. The Supervisor stated that they were scheduled to work the same number of hours. The Faculty Director stated that Complainant received a few more hours one week and the coworker a few more hours the other week during this time period. As for Complainant being assigned a later shift, the Supervisor asserted that Complainant was observed arriving late when she was scheduled for an 8:00 a.m. shift, therefore the Faculty Director instructed her to assign a later starting time to Complainant. As for Complainant’s reassignment from Room 120 to Room 118, Complainant maintained that she had been promised the Lead position in Room 120 by the former Director and the assignment of her Hispanic coworker to the classroom usurped her position. The Faculty Director noted there was continuing conflict between Complainant and her coworker. Despite holding a meeting with the two of them where he explained their duty assignments and expected conduct, the conflict continued. The Faculty Director explained that as a result he moved Complainant to a different classroom and the coworker to a different facility. The Faculty Director further explained that he had received a full-time employee and Complainant was part-time, and thus he decided to place the full-time employee in Room 120 so that he would not need two people, as a 0120150838 4 full-time person could stay in that classroom from the time the facility opened to when it closed for hourly care. With regard to Complainant’s claim of disability discrimination, Complainant stated that she sustained an on-the-job injury that resulted in torn knee ligaments to both of her knees and limited her ability to kneel or walk at a fast pace. Complainant asserted that the Faculty Director harassed her when he said she was very slow and that it took her thirty minutes to change a diaper. Complainant stated that due to the injury to her knees, she is unable to get on her knees to assist children with using the toilet. The Faculty Director stated that a parent complained that Complainant was slow changing diapers and walking. The Agency noted that Complainant acknowledged that since her injury, she moves more slowly and cannot perform certain aspects of her job without pain. The Agency assumed arguendo that Complainant set forth a prima facie case of discrimination under each of the alleged bases with respect to each claim. As to her performance appraisal, the Agency determined that Complainant failed to establish that she received a less favorable performance appraisal based on her age or national origin. The Agency noted that the Hispanic coworker in Complainant’s classroom also received a “Satisfactory” rating. The Agency also noted that the Supervisor could not have discriminated against Complainant since the Second- level Supervisor issued the rating. With respect to the German language posters on the walls, the Agency stated that some of the material was taken down because it violated regulations regarding classroom decorations. As for the lesson plans, the Agency determined that in addition to English, Complainant conducted some lessons in German and the classroom coworker conducted some lessons in Spanish. The Agency determined that Complainant’s working conditions were not less favorable than those of her classroom coworker. With respect to the number of hours that Complainant worked, the Agency stated that in some weeks Complainant received more hours than her classroom coworker and in other weeks it was the opposite, but the hours generally evened out. According to the Agency, the allotment of hours was based on the mission of the organization. As for the reassignment of Complainant to a different classroom, the Agency stated that Complainant and the classroom coworker were reassigned after continually having conflict while working together. Further, the Agency stated that the assignment of a full-time employee permitted that employee to remain in the room for the entire time it was open, which management believed was an effective use of personnel. With regard to the Faculty Director allegedly calling Complainant slow, the Faculty Director denied this but the Agency determined that even if he used the word “slow” to describe the speed at which she changed a diaper, such a comment would not constitute disability discrimination. The Agency found that the description of how long it took Complainant to change a diaper stemmed from a report to management by a parent. The Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions at issue. The Agency further determined that the environment created within Complainant’s workplace was not sufficiently severe or pervasive to constitute a hostile work environment. Finally, the Agency determined that 0120150838 5 Complainant failed to prove that its reasons for the actions at issue were pretext intended to hide discriminatory motivation. CONTENTIONS ON APPEAL On appeal, Complainant raises issues that occurred subsequent to the filing of this complaint. Complainant appears to argue that she was denied reasonable accommodation for her disability and she challenges her termination. In response, with respect to the claim concerning Complainant’s work hours, the Agency noted that for the pay period of July 26, 2012 – August 8, 2012, Complainant worked 61.25 hours and the Hispanic classroom coworker worked 56.25 hours. The Agency notes that for the prior pay period, Complainant worked 61.25 hours and the Hispanic classroom coworker worked 66.50 hours. The Agency notes that the Supervisor stated that Complainant and this coworker were scheduled for the same number of hours, and that Complainant was scheduled for later hours because she was late on several occasions and could be on time if she started later. As for the change in structure and subsequent reassignment to a different classroom, the Agency asserts that Complainant did not like that someone else from her perspective was taking over her classroom after she returned from leave for her injury. The Agency maintains that the former Faculty Director placed the Hispanic coworker as Lead in the classroom because Complainant had yet to become a CYPA4 and could not do lesson plans. According to the Supervisor, the coworker had been with the Agency longer than Complainant and had finished her training. The Supervisor noted that Complainant had completed the training for Level 4, but the paperwork had not been completed for her to be a CYPA4. ANALYSIS AND FINDINGS 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). She must generally 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, 411 U.S. at 802 n. 13. The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 0120150838 6 Complainant claims that she was subjected to harassment by both management officials and coworkers. To establish this claim, 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). 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); EEOC Enforcement Guidance at 6 (March 8, 1994). We shall assume arguendo that Complainant set forth a prima facie case of discrimination on each basis with regard to each claim. The Agency explained as to Complainant’s “Satisfactory” performance rating that it was based on Complainant’s frequent tardiness and her difficult interactions with coworkers. The Agency asserted that the German language numbers at issue were not removed from the wall but that the items designed by Complainant’s daughter were removed because they violated regulations. They presented a security concern because they blocked the camera view and the classroom also could be rated higher if it displayed work done by its students. The Agency stated that lesson plans allowed for the teaching of English, Spanish, and German. The Agency further asserted that it responded to Complainant’s concern about Spanish being spoken around her by telling the classroom coworker to be mindful of speaking in Spanish around co-workers. In terms of the work hours at issue, the Agency maintained that at times Complainant received more hours and at other times the classroom coworker received more hours. The Agency notes that Complainant’s work time shift was moved back to accommodate her frequent tardiness so that she would now arrive on time. With respect to the reassignment of Complainant from Room 120 to Room 118, the Agency asserted that the ongoing conflict between Complainant and the coworker who became the Lead in the classroom could not be resolved, thus necessitating the reassignment. The Agency noted that they were arguing in front of the children in the classroom and parents were complaining. As for the Faculty Director allegedly referring to Complainant as slow, the Agency denies that it occurred but states that if it did, it was a factual description of Complainant’s current capacity to perform some of her duties, which Complainant admits. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions at issue. Upon review of Complainant’s arguments to establish pretext, we do not discern any persuasive evidence that refutes the various reasons presented by the Agency. Complainant has not shown that she merited a higher performance rating than ‘Successful’. There is no indication that discriminatory intent was a factor in decorations being removed from the wall or in how the lesson plans were developed. Complainant and her classroom coworker had roughly an equal number of work hours during the relevant period. 0120150838 7 Complainant has not presented persuasive evidence to challenge the Agency’s reason for her having a later shift. In terms of the classroom reassignment, it is clear that Complainant and her classroom coworker were engaged in ongoing conflict and the Agency appropriately took measures to resolve the situation. We observe that the coworker was also reassigned. We discern no discriminatory motivation as a factor in Complainant’s reassignment. With regard to the comment about Complainant being slow, although the remark was insensitive, it was accurate in general. The record indicates that Complainant’s torn knee ligaments did slow her down in terms of walking, made kneeling difficult and increased the time it took for her to perform job duties such as changing a diaper. We do not find that the comment was uttered with discriminatory motivation. With regard to Complainant’s hostile work environment claim, we find that the aforementioned incidents, including that of the classroom coworker talking Spanish with the Supervisor, were not sufficiently severe or pervasive to constitute harassment. Further, we find that no discriminatory motivation was involved in any of these incidents. Additionally, should Complainant wish to pursue through the EEO complaint process matters raised in her appeal that were not part of this complaint, she is advised to promptly contact an EEO Counselor. CONCLUSION 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 decision. 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), 0120150838 8 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. 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. 0120150838 9 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 December 12, 2017 Date Copy with citationCopy as parenthetical citation