0120113433
10-27-2011
Yolanda M. Carter-Nesbitt, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Yolanda M. Carter-Nesbitt,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120113433
Agency No. 2010-23263-FAA-04
DECISION
On May 5, 2011, Complainant timely filed an appeal from the Agency’s
April 8, 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, as amended, 42 U.S.C. § 2000e
et seq. The Commission accepts the appeal pursuant to 29 C.F.R. §�
�1614.405(a).
ISSUES PRESENTED
The issues presented are whether Complainant was discriminated against
based on her race (African-American), sex (female), and reprisal for
protected EEO activity under Title VII when she was subjected to a
hostile work environment, with examples including:
1. in December 2008, her first line supervisor (S1) (white male)
forced her to return to work although she was eight months pregnant
with complications;
2. on September 14, 2009, S1 loudly told her with her co-workers
overhearing that she was lying when she said how long it took her to
work on a project;
3. in September 2009, S1 did not include positive feedback on her
performance appraisal on a detail assignment she had in the Eastern
Region, and failed to delete items on the appraisal that did not belong;
4. in January 2010, she was falsely accused by Acting Supervisor 1, who
was acting for S1 that day, of not being at home when she was supposed to
be teleworking, refusing to come to the office, not calling the office
on time, and refusing to speak with an agent concerning a background
investigation for another employee;
5. in March 2010, S1 rescinded the nomination for her for a Federal
Executive Board (FEB) award;
6. S1 directs her co-workers to watch her;
7. in May 2010, S1 gave her a letter of reprimand;
8. on June 3, 2010, she learned that she was the subject of a security
investigation requested by S1;
9. on July 6, 2010, she was given a leave abuse letter;
10. in pay period 14 (June 2010), S1 disapproved her request for 20
hours of leave he previously approved and gave her 40 hours of leave
without pay (LWOP), and then on September 10, 2010, he charged her with
4.45 hours of absent without leave (AWOL); and
11. S1 said he was not going to call her about leave questions and told
her that she was not working up to standards.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Computer Specialist at the Agency’s Great Lakes Regional Office,
O'Hare Lake Office Center facility in Des Plaines, IL. On July 20,
2010, she filed an EEO complaint, as amended, alleging the above claim.
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. 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 discrimination. The Agency reasoned that many of the incidents
did not occur as alleged, that it had legitimate, nondiscriminatory
reasons for its actions, and that the incidents did not rise to the
level of actionable harassment. On appeal, the parties make no comment.
Complainant was pregnant in 2008 and early 2009. She was expecting on
January 17, 2010, and had her daughter on January 5, 2010. Complainant
lived in two residences. One was in the Chicago area; and the other was
in New York, where her husband lived and she considered home. The record
suggests she had family in both locations. Complainant worked 10 hours
a day, four days a week, and at some point her schedule was not to work
the first Friday and second Monday off, giving her a four day weekend
every other week. Report of Investigation (ROI), Exh. F-4, at 24.
She returned to New York about every other week.
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). The prima facie inquiry may be dispensed
with where the Agency has 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).
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee’s work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she is a member of 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 the statutorily
protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998); 29 C.F.R. §1604.11.
Regarding incident 1, Complainant planned to go out on maternity leave,
prior to the birth of her child, on December 2, 2008. She stated that
S1 would not release her without a medical note that she was on bed rest
and her physician refused to make such a note, and that S1 forced her
to come into the office on December 10, 2008.
Complainant contended that she already submitted sufficient medical
documentation. Up to this point, she submitted letters from health
care providers dated October 27, 2008 and November 7, 2008. The first
stated she was receiving prenatal care and was at high risk of genetic
problems due to her age, and the second that she must work light duty,
i.e., not lift over 10 pounds, not do prolonged walking or standing, and
have occasional rest during the day. S1 stated he needed a doctor’s
note to grant sick leave, and Complainant never made it clear what
her condition was and did not produce a doctor’s note. The record
contains a December 1, 2008, email by S1 to Complainant asking if she
had a doctor’s note requiring her to be off full time, and if not,
saying he would check with human resources to see what was needed.
Complainant stated her leave request was later approved.
On incident 2, S1 denied that he raised his voice and called Complainant
a liar. A co-worker who was at the meeting corroborated this account,
and stated he did not recall S1 calling Complainant a liar. The co-worker
wrote that S1 was stern. ROI, Exh. F-5, at 2. The project consisted of
going to each end user’s computer, and following adjustments set forth
in screen shots to prepare peoples’ computers for the centralized
electronic distribution of an email program. Complainant stated it
would take her 10 to 45 minutes a computer, but co-workers and others
indicated it should take from around less than 5 to 10 minutes a computer.
A review of affidavits by Complainant’s co-workers shows it was not
unusual for S1 to question subordinates about the time required to
complete work.
On incident 3, S1 explained that the negative comments about
Complainant’s leave use and productivity in the appraisal were
justified, but after Complainant insisted, to make peace, he removed the
negative comments and added the information about her detail assignment.
On incident 4, the Acting Supervisor stated that on the morning of
December 29, 2009, Complainant called asking to telecommute, and he
approved her request. Later that day, an Office of Personnel Management
(OPM) investigator came to the office and wanted to talk to Complainant
in person, so he called Complainant at home. The Acting Supervisor
said the person who answered the telephone indentified herself as
Complainant’s Aunt, and he then called Complainant on her cell phone.
In a memorandum to their mutual second line supervisor, the Acting
Supervisor wrote that he asked Complainant if she could come in the
next day to see the investigator, and she said no because she would
be on leave. Complainant countered that Acting Supervisor called an
old number, and she was at home. There is no evidence Complainant was
disciplined for this matter.
On incident 5, S1 explained that his Management Assistant, on her own
volition, nominated everyone in the office for the award, and he did
not back up Complainant’s nomination because it was not warranted.
The Management Assistant stated there was a contest to see who could
nominate the most people, so she nominated everyone in the office and won
the contest. S1 stated that Complainant did not complete the project she
was nominated for, and even if completed, it did not warrant an award.
He also did not back up the nominations of himself (Caucasian) and one
another employee (white male, no EEO activity).
On incident 6, S1 denied that he directs co-workers to watch
Complainant’s whereabouts. Co-workers denied being asked to do, but one
person who acted in S1’s absence generally indicated that he was briefed
on what he needed to know as the acting supervisor. ROI, Exh. F-5, at 5.
Regarding incident 7, Complainant was reprimanded for conducting a
physical inventory of equipment in a deficient manner. She conducted
the search over about a two week period, looking for about 270 items.
S1 charged that Complainant submitted her inventory on April 15, 2010,
with $60,000 in assets missing. He stated that he and others located
missing items after a simple review of the back room, legal storage room,
and racks in the computer room, and one asset was located just outside
someone’s cubicle. He stated others had to be pulled from their work
to do this. Complainant contended that she was told not to check one
area where items were excessed.
On incident 8, on June 2, 2010, S1 requested the Manager of Security
and Investigation to investigate Complainant’s assertion in relation
to incident 7 that two of her co-workers hid assets and deliberately
mislead her by moving them to the storage room, claiming they were not
there when she looked. ROI, Exh. 30. Complainant denied making this
accusation, but did state that items showed up in certain areas after
she looked in them. ROI, Exh. F-2, at 16. In support of her denial,
she pointed to an email she wrote to S1 on April 15, 2010, complimenting
one of the above co-workers for giving her helpful inventory paperwork.
S1 stated Complainant’s accusation that employees hid assets to
sabotage her physical inventory was a serious allegation which warranted
an investigation.
On incident 9, the July 2010, leave restriction letter charged that since
January 2010, Complainant used 68 hours of sick leave in conjunction with
her regular days off or annual leave. Two or three incidents were for one
or more whole days, and about five incidents were for fractions of days.
S1 stated that he issued the leave restriction letter because Complainant
has called in and came in late, and used sick leave before and after
her regularly scheduled days off. He stated she was abusing leave,
and the team could not count on her to come in at her scheduled time.
Complainant countered that S1 understood that she took sick leave
off in connection with being in New York, and most of her sick leave
was scheduled in advance. She noted that her infant daughter lives in
New York. The record shows some of the sick leave was approved prior to
being taken, and some was approved after. The record does not contain
time and attendance documentation of when leave requests were made.
Complainant stated that if she wanted to request off she would be careful
to call by 6 AM on the day for which she requested time off. Exh. F1A,
at 18.
On incident 10, S1 explained that he charged Complainant AWOL because
she left early on September 10, 2010, he could not find a leave request
in the electronic time and attendance system, nor could his Management
Assistant, who even called the program office and no request could
be found. The Management Assistant, who did timekeeping, corroborated
S1’s account of her efforts, stating she could not find a leave request.
Complainant, however, was able to print out her prior approved leave
request, and S1 then corrected the AWOL.
Complainant requested annual and sick leave four consecutive days in
June 2010. S1 stated that he approved Complainant’s request for
leave, but she did not have leave to cover the request, so he later
disapproved the leave. He also stated that he asked Complainant to
bring in a doctor’s note for the two days of sick leave, and she
did not do so. Complainant countered that she had a leave balance.
The record contains emails by S1 to Complainant approving leave for June
24, 2010, but on June 30, 2010, disapproving leave for June 22, 2010 and
June 23, 2010, because she did not have any leave balances available.
Complainant contended that she had an annual leave balance of 44 hours,
and a sick leave balance of about 8 hours. A leave balance statement
for this time period indicated Complainant had an annual leave balance
of 26:15 hours and a sick leave balance of 4:45 hours.
On claim 11, S1 explained that it was Complainant’s responsibility
to advise him of her leave requests, and her work was less than he
expected. He stated Complainant calls in at start time for leave,
which is disruptive to the team.
The Agency gave legitimate, nondiscriminatory reasons for its actions,
i.e., many did not occur as alleged and the actions were justified
based on Complainant’s conduct or the information the Agency had.
The burden is on Complainant to show pretext or that alleged incidents
of harassment were based on her race, sex, or reprisal for EEO activity.
Complainant did not meet this burden.
We note that on incident 10, there is some question as to Complainant’s
available leave balance. There is no allegation that S1 tended to
falsely claim Complainant did not have a leave balance when she did,
and Complainant’s low leave balances show her leave requests were
frequently approved. Given this, we don’t find that S1’s explanation
that Complainant did not have leave to cover her request, and hence she
was granted LWOP, was not pretext to mask discrimination
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s finding of no discrimination.
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
October 27, 2011
__________________
Date
2
0120113433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113433