0120113826
12-18-2015
Agency.
Shela O.,1
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113826
Hearing No. 451-2010-00227X
Agency No. ARFTSAM09SEP04047
DECISION
On July 26, 2011, Complainant filed an appeal from the Agency's July 18, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) determination that Complainant was not discriminated against based on her national origin and sex when she was terminated during her probationary period was supported by substantial evidence in the record; and whether the AJ abused her discretion with respect to her conduct of the hearing.
BACKGROUND
Complainant was hired on October 27, 2008, as a Plan and Operations Specialist, with the Army Community Services (ACS), Directorate of Morale, Welfare and Recreation, Fort Sam Houston, Texas. At all pertinent times, Complainant occupied a GS-301-09 position, and was serving a one-year probationary period.
The record reveals that the unit where Complainant worked had problems obtaining accreditation over the years. Complainant was tasked with job duties, such as inventory of equipment and property and attendance records that had to be accomplished in order to meet accreditation standards.
On September 14, 2009, Complainant received a notice of termination, effective September 14, 2009. Complainant maintained that her first-line supervisor, S1 (Caucasian male), and her second line supervisor S2 (Caucasian male), were discriminating against her. On January 11, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic2) and sex (female) when she was terminated.
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. Complainant timely requested a hearing, which the AJ held February 23, 2011. On June 13, 2011, the AJ issued a decision in favor of the Agency. On July 18, 2011, the Agency issued a final order that adopted the AJ's decision.
Complainant maintained that she was treated differently than C1 (Black, male), C2 (Black, female) and C3 (Caucasian, female). With regard to her claim of sex discrimination, Complainant stated that she confided in S1 that she was a lesbian. Complainant testified, she "does not prefer males," and that she regularly wore a man's shirt and tie as her work attire. Complainant also testified that she was always being questioned about her sexuality.
The AJ found the following:
Complainant was issued a Termination during Probationary Period Notice from her second-level supervisor (S2). The notification letter, dated September 14, 2009, stated that the reason for the termination was Complainant's "unacceptable and unprofessional behavior." In support, the Agency provided ten examples of Complainant's conduct that resulted in her termination. This included complaints from coworkers about threats, profanity, confrontations with coworkers, name-calling, inappropriate behavior, and referring to S2 as "Grandpa" and the ACS Director as "Daddy" in the workplace and in the presence of other employees, ACS volunteers, contractors, and clients. The notice also provided that "the probationary/trial period is an extension of the examining process and, by the documented evidence of your demonstrated unacceptable and unprofessional behavior; you have failed to qualify for continued employment . . . ."
Complainant conceded that on some occasions she used profanity in the workplace and maintained that on one occasion she did say "karma is a bitch" and on another occasion, she said, "Shit, I'm late." Complainant acknowledged that a co-worker was once disciplined with a two-day reprimand for her use of inappropriate language. Complainant maintained that profanity was used in the workplace by others. She also noted that a volunteer used inappropriate language and even showed pornography on the computer.
The AJ found that Complainant did not establish a prima facie case of national origin discrimination. Specifically, the AJ concluded that the undisputed record showed that other probationary employees outside of Complainant's protected class were also terminated during their probationary periods. The record indicates that within the past two years, in addition to Complainant, at least one other probationary employee was terminated. The other probationary employee who was terminated was female and Black. The AJ noted that C1 and C2 were also terminated during their probationary periods.
With regard to C3, the AJ noted Complainant's contention that she engaged in the same type of conduct for which Complainant was terminated, i.e., using profanity and calling S2 "Grandpa," but, unlike her, C3 was not terminated. The AJ found this contention unpersuasive. Among other things, the AJ noted that there were not as many employee complaints about C3 as there were about Complainant. C3, therefore, was found not to be similarly situated to Complainant.
The AJ also found that Complainant failed to establish a prima facie case of sex discrimination because Complainant's own testimony established that a male probationary employee, C1, was also terminated during his probationary period. The AJ further noted that, although Complainant asserted that she was subjected to sex or gender discrimination because of her sexual orientation, sexual orientation was not a protected class under Title VII.3
The AJ found that Complainant failed to establish that the Agency's proffered reasons for her termination were a pretext for discrimination, i.e., even if she established a prima facie case of race or sex discrimination, there was no evidence that the reasons articulated by the Agency were a pretext for national origin and sex discrimination.
ANALYSIS AND FINDINGS4
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. National Labor Relations Board, 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.
To prevail in a disparate treatment claim, 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 Construction 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 (2000).
We concur with the AJ's determination that, even assuming for the purpose of our analysis that Complainant established a prima facie case of sex and national origin discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., the ten examples of "unacceptable and unprofessional" conduct set forth in Complainant's termination letter. Although Complainant contested the truth of some of the allegations, she did not demonstrate that the Agency's reasons for terminating her were because of her national origin and sex.
Since the time the AJ issued her decision, the Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015). Because we find that the record has been adequately developed on this point, we can proceed without remanding this matter for further investigation. According to Complainant, she confided in S1 about her sexuality. In her testimony, Complainant explained that she regularly wore a man's shirt and tie as her work attire. Complainant also testified that she was always being questioned about her sexuality. We find nothing in the record, however, that indicates that Complainant's termination was in anyway related to her sexual orientation.
Complainant also testified that, in the past, S1 applied for a GS-12 position but was not selected, and that he blamed her. According to Complainant, S1 never looked at her directly and was hostile and rude to her. S1, she maintained, never interacted with her directly even though she had to constantly go back to him because she found he always had something else to inventory that he did not inform her about, and because of time and attendance. According to Complainant, this was a continuing conflict.
Complainant also testified that S1 previously served as the Volunteer Manager, and "already had a taste of [her]" from when she was a volunteer before she was hired. Complainant felt that S1 expressed negativity and bias toward her when she stated that she wanted to be a federal employee; S1 had stated, "There's nothing wrong with being a contractor." The AJ correctly found that all of these matters were insufficient to establish bias due to any protected bases on S1's part.
In support of why Complainant believed S2 bore discriminatory animus towards her, Complainant alleged that S2 would wiped his hand on his trousers or other employees after shaking hands with her. Again, the AJ appropriately found that while offensive, this was unpersuasive to show discriminatory animus.
Complainant's own hearing testimony provided substantial evidence in support of the AJ's determination that discrimination played no role here. As the AJ noted, Complainant testified that turmoil in the office was caused when S2 directed her initial first-line supervisor (IS1) to reorganize and revamp the unit. Complainant further testified that IS1 required program managers to account for property and equipment that they had been issued. Because it was Complainant's job to make sure this was done, this caused friction between Complainant and the program managers. According to Complainant, employees, whom she referred to as "malcontents," wanted IS1 to be removed and they wanted to be able to "revert to the previous lax work standards and flexible attendance practices that had been in place under the previous management."
The AJ found that Complainant's hearing testimony left no doubt that there was extensive tension in the workplace. However, the AJ found that there is no persuasive evidence to support a claim of national origin or sex discrimination. To the contrary, the AJ found that the identified incidents were more likely related to poor management and a lax workforce that resented Complainant's efforts to implement higher work standards, not to her race or sex. We agree.
Finally, we note that the Commission has long held that where, as here, a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected status. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Like the AJ, we simply find no persuasive evidence of discriminatory animus here.
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 final order finding no discrimination. The AJ's decision, which was adopted by the Agency, is supported by substantial evidence in the record and Complainant has not shown that she was subjected to unlawful discrimination based on her national origin and sex.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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. 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, Director
Office of Federal Operations
_12/18/15_________________
Date
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.
2 Although Complainant identifies "Hispanic" as her race, under the Commission's statutes and regulations, "Hispanic" denotes a national origin. We note that the same analytical framework applies to both race and national-origin discrimination claims.
3 We note that the treatment of claims alleging sexual orientation discrimination has changed during the pendency of these proceedings. See discussion in the text, infra.
4 On July 26, 2011, Complainant filed her notice of appeal. Any supporting statement must have been submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. See 29 C.F.R. � 1614.403(d). Therefore, any briefs in support of Complainant's appeal were due by August 25, 2001. After the expiration of the 30-day time limitation period, however, Complainant, on September 29, 2011, requested an additional 15 days to file a brief. Complainant's request was denied because it was submitted after August 25, 2011. Complainant subsequently submitted a brief in October 2011 and additional briefs in February 2012, and August 2013. Accordingly, we decline to consider Complainant's three (3) briefs as they were untimely filed.
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0120113826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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