0120092784
11-09-2009
Alma P. Flores, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency.
Alma P. Flores,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120092784
Agency No. HS08CIS005939
DECISION
On June 22, 2009, complainant filed an appeal from the agency's April 21, 2009 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 seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as an Immigration Services Officer at the agency's Texas Service Center in Dallas, Texas. On July 6, 2008, complainant filed an EEO complaint. Therein, complainant claimed that she was harassed on the basis of sex (female) and in reprisal for prior protected EEO activity (arising under Title VII) when:
(1) On April 1, 2008, she received a Performance Work Plan with unattainable productivity standards;
(2) On April 4, 2008, the Assistant Center Director served her with a written counseling because of an e-mail sent to several employees;
(3) On May 5, 2008, the Assistant Center Director served her with a written counseling for failure to attend two mandatory unit meetings;
(4) Since May 2008, management unfairly scrutinized her decisions, directed her not to communicate with coworkers through the "reply all" e-mail function, and refused to respond to e-mails regarding important duties; and
(5) On June 11, 2008, the Deputy Director issued her a Letter of Reprimand for improperly excessive personal telephone usage.
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 failed to request a hearing within the thirty day time frame, and the agency subsequently issued a final decision. The agency dismissed the first issue for failure to state a claim and found that because complainant failed to establish "pretext" with regard to the remaining issues, her harassment claim failed.
CONTENTIONS ON APPEAL
On appeal, complainant, who is represented by counsel, urges us to apply the standards appropriate when a fact-finder is deciding whether to grant summary judgment and argues that because there are material facts in dispute, we should remand this case for hearing. The agency, in response, asks the Commission to strike numerous facts set forth in complainant's brief for being "inflammatory, unduly prejudicial" and not directly related to the claim at issue in the complaint. Finally, complainant sent us a courtesy copy of a "Motion to Consolidate Pending EEO Matters And Stay Proceedings." which was directed to the Commission's Dallas District Office where she has two related cases pending hearing.
ANALYSIS AND FINDINGS
Initially, we note that in the administrative process set forth at 29 C.F.R. Part 1614 and further elaborated on in EEOC Management Directive 110 (November 9, 1999), complainant had the opportunity to request a hearing at the conclusion of the investigation. However, complainant failed to do so. Therefore, material facts possibly remaining in dispute is not grounds for a hearing at this stage of the administrative process. The Commission acknowledges that it could exercise its discretion to vacate the agency's final decision and remand the instant formal complaint to the Dallas District Office Hearings Unit for consolidation with the related complaints pending there. However, upon review of the record, we are not persuaded that, given the facts in this case, the Commission should remand a matter which would amount to excusing complainant's own failure to request a hearing. Moreover, the incidents alleged herein are preserved as background evidence for the cases pending hearing. Finally, we agree with the agency that significant portions of complainant's brief have nothing to do with the instant complaint.
Having made this determination, however, we nevertheless conclude that the agency erred in dismissing the first issue for failure to state a claim. Complainant has alleged five incidents that comprise her single claim of sex and retaliatory based harassment. By dismissing an issue, the agency improperly fragmented the complaint. Accordingly, all five issues will be considered.
To establish a claim of harassment, complainant must prove that she was subjected to a hostile work environment by establishing that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Second, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, sex and reprisal. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
Upon review of the record, we decline to find that any of the agency's actions were objectively offensive. To the contrary, we conclude that they were reasonable and consistent with the exercise of managerial authority. The agency provided legitimate and non discriminatory reasons for why complainant was counseled and why it changed its Performance Work Plan for all Immigration Service Officers, and not just for complainant. Complainant's response is that she was singled out and treated less favorably than others. However, complainant fails to identify anyone who, in fact, engaged in similar behavior and was not counseled. Moreover, complainant does not deny that she did any of the things for which she was counseled but rather argues that the agency did not have or did not enforce consistent policies. The Commission recognizes that disciplinary action in the absence of appropriate policies and procedures can give rise to a discriminatory inference if other evidence supports it. However, in this case, the evidence supports the conclusion that complainant had little respect for management's inherent authority to determine how to run its operations and was inclined towards insubordination. As an example, complainant's reason for not attending mandatory unit meetings was that she did not think they were "important." In addition, after she was counseled for excessive personal telephone usage on her government telephone line, she began using her personal cell phone at work. We do not find management's actions towards complainant to be either so severe or so pervasive that a reasonable employee in complainant's position would find them to be hostile or abusive. Finally, the evidence that management was motivated by either sex or reprisal is even less compelling. Complainant's testimony in this regard lacks credibility. Accordingly, we find that the agency did not subject complainant to unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
November 9, 2009
__________________
Date
2
0120092784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092784