0120113038
12-02-2011
_________________, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Land Management), Agency.
_________________,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120113038
Hearing No. 540-2011-00068X
Agency No. BLM100066
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s May 16, 2011 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Human Resource Clerk at the Agency’s Bureau of Land Management
in Phoenix, Arizona.
On November 6, 2009, Complainant filed a formal complaint alleging that
the Agency subjected her to hostile workplace discrimination on the
bases of sex (female) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when: 1) on October 13, 2009,
her interim supervisor stated that, "she reminded him of his girlfriend in
the Bronx;" 2) on October 22, 2009, her interim supervisor approached her
and told her to, "take her belt off, and then instructed her to tuck her
shirt in;" and 3) from October 5, 2009 through December 18, 2009, during
her interim supervisor's detail as Acting Associate District Manager, he
"constantly went into her cubicle and peered, trying to make eye contact
with her, engaging in voyeurism."
At the conclusion of the investigation, 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 May 2, 2011, the AJ issued a decision after a hearing 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
credible testimony that as part of an effort to build comradery and meet
his employees, Complainant's newly acting supervisor (Complainant's
supervisor) attempted to find commonalities between his employees.
On one such effort, on October 13th, 2009, he spoke with Complainant and
informed her that her accent sounded like an old girlfriend of his. The
AJ found that while Complainant's supervisor’s comment about her accent
and his old girlfriend may not have been the most professional statement
to make, it was not enough to create a hostile work environment.
The AJ also found that on October 22, 2009, Complainant's second-level
supervisor instructed Complainant's supervisor to inform Complainant that
her uniform was inappropriate. Complainant had the Agency's uniform shirt
on with a belt cinched around her waist with hip-hugger capri pants on.
Complainant's supervisor went to Complainant's cubicle and informed
her to remove her belt and tuck her shirt in. Complainant complied by
removing her belt but was unable to tuck her shirt in. Complainant then
contacted her union steward and the EEO office to file a sexual harassment
complaint. Complainant did not dispute that her attire was inappropriate,
but, rather, she testified that she was not aware of uniform guidelines.
Based on her demeanor and inconclusive testimony, the AJ did not find
credible Complainant’s claim that during the October 22nd incident,
her supervisor stood with an erection close enough to straddle her.
Complainant also asserted that her supervisor would walk by her cubicle
10 to 12 times a day, sometimes 12 to 15 times. She testified that she
worked from 7:00 to 4:30 and believed that her supervisor worked from 7:00
to 4:00 p.m. The AJ found that taking these hours into consideration,
having to walk by a cubicle 10 to 12 times a day does not constitute
a hostile work environment, especially considering Complainant's
supervisor’s testimony that on both sides of Complainant's cubicle
were employees that he needed to interact with, a budget analyst and
an acting administrative officer who kept track of daily running of
the office, and had frequent occasions to speak to them. Notably,
Complainant did not testify to, nor is there evidence in the record,
that her supervisor entered her cubicle aside from the belt incident.
The AJ further noted that in terms of the harassment claim and
the hearing itself, there were only two witnesses that testified.
Complainant failed to identify any other witnesses aside from herself
to verify her testimony. The AJ also noted that he found Complainant's
supervisor more credible than Complainant. Further, the AJ found there
was no evidence of a causal connection between the conduct Complainant
complains of and Complainant's prior EEO activity.
In conclusion, the AJ found that there is 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. 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
a decision finding no discrimination. She further asserts that the AJ
did not adequately address her claims of harassment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
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.
Substantial evidence supports the AJ’s conclusion that Complainant
failed to prove that she was subjected to a discriminatory hostile
work environment. 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. The AJ’s findings that
either the alleged incidents did not occur at all or that they did not
occur in the way Complainant claimed is well supported by the evidence.
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 she claims were either adverse or disruptive to her, we find
that Complainant fails to show that these incidents were as a result of
unlawful discrimination. Finally, to the extent Complainant is alleging
disparate treatment with respect to her claims, 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 final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
December 2, 2011
__________________
Date
2
0120113038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113038