0120100043
07-12-2012
Valerie P. Fagan, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Valerie P. Fagan,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120100043
Agency No. 2008-22368-FAA-03
DECISION
On October 5, 2009, Complainant filed an appeal from the Agency's ***FAD date DT***, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant period, Complainant worked as a Management & Program Analyst at a College Park, Georgia facility of the Agency. On January 21, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (high blood pressure, lupus, fibromyalgia, anxiety) and reprisal for prior protected EEO activity when (1) as of July 31, 2008, the Agency subjected her to hostile work environment harassment, (2) after a medical leave of absence related to the alleged harassment, on January 30, 2009, the Agency constructively reassigned Complainant to the Congressional/FOIA branch, and (3) Agency management required Complainant to participate in facilitation/mediation with C1 and, after Complainant participated for four days, the Agency only approved payment for one day.
Specifically, as to (1), Complainant alleges that a fellow analyst (C1) angrily demanded a weekly status report from her, loudly told a third party that she hates her job and her colleagues, screamed at Complainant for working on C1's cases, and publicly demeaned Complainant when she attempted to assist by submitting the work report of a coworker who was on maternity leave. Complainant added that her supervisor (S1)1 was informed of the harassing incidents but failed to address C1's behavior. Complainant stated that prior to filing an EEO complaint, she requested group facilitation. Complainant was placed on a medical leave of absence on September 5, 2008.
The Agency accepted Complainant's complaint for investigation. During the investigation, regarding (1), C1 stated that Complainant's allegations of her behavior are false. C1 stated that she expressed concern to Complainant and another analyst about calling a meeting with management about her without her prior knowledge. C1 stated that she viewed them as "backstabbers." A Senior Adviser stated that management contacted Complainant to conduct an internal investigation regarding the harassment allegations, but Complainant was unavailable when she held individual interviews. A Human Resources Specialist stated that management contacted her to interview Complainant, but Complainant was ill and the interview was later cancelled. For (2), Complainant's second level supervisor (S2) stated that Complainant's position of record remains the same with no loss of pay. As to (3), S2 stated that she spoke with Complainant and requested amendment of Complainant's pay for 19.5 hours over four days for facilitation participation. S2 provided payroll documentation to support her contention.
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. The Agency concluded that Complainant failed to show that the alleged actions were based on discriminatory motives, and that the Agency took prompt corrective action in response to Complainant's allegations. Further, the Agency found that Complainant failed to show the legitimate, nondiscriminatory reasons articulated by the Agency for its actions were pretext. The instant appeal from Complainant followed. On appeal, Complainant stated that she established that a coworker, C1, subjected her to treatment that exacerbated her medical conditions and the Agency failed to promptly respond to her allegations.
ANALYSIS AND FINDINGS
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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision. Assuming the actions Complainant alleged rose to the level of a hostile work environment, the record is devoid of evidence to support discriminatory or retaliatory animus. The record reveals that C1 had problems with Complainant and another analyst regarding voicing concerns about C1 to management. The record suggests that C1's behavior arose from her characterization of her fellow analysts as "backstabbers," rather than impermissible factors. Although C1's actions may have been improper, harassment does not violate federal law unless it involves discriminatory treatment on a basis covered under the anti-discrimination statutes. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). The Commission has held that the anti-discrimination statues are not a "general civility code." Id. Further, the record reveals that the Agency acted based on Complainant's allegations - it held facilitation and an internal investigation. We AFFIRM the final agency decision.
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
7/12/12
__________________
Date
1 S1 retired from his position in January 2009.
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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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