0120142704
09-08-2016
Becky N.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Becky N.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120142704
Agency No. DOI-FWS-12-0570
DECISION
On July 26, 2014, Complainant filed an appeal from the Agency's February 19, 2014, 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 record indicates that Complainant's attorney did not receive the Agency's final decision. On June 19, 2014, the Agency re-issued its decision which the Attorney received on June 27, 2014. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Visitor Services Specialist Park Ranger, GS-0025-05, at the Agency's Okefenokee National Wildlife Refuge in Folkston, Georgia.
On January 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her claim, Complainant alleged that the following events occurred:
1. on December 17, 2012, the Supervisor issued Complainant a Letter of Reprimand (Letter).
2. On December 17, 2012, Complainant received a rating of "Unsatisfactory" on her FY2012 Employee Performance Appraisal Plan; and
3. On August 17, 2012, the Supervisor issue Complainant a Performance Improvement Plan.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency determined that Complainant failed to show that the incidents alleged were severe or pervasive enough to establish that she was subjected to unlawful retaliatory harassment. The Agency then turned to Complainant's claim of disparate treatment. The Agency held that the Agency provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were pretext for unlawful retaliation. The Agency then turned to Complainant's claim of retaliatory harassment. As such, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged.
This appeal followed. On appeal, Complainant argued that the Agency fragmented the complaint when it addressed each event distinctly and not as a pattern of ongoing discrimination. She argued that she had been subjected to a pattern of adverse treatment because of her prior protected activity. She also claimed that the investigation was not complete and that the Agency's decision is not supported. The Agency requested that the Commission affirm its finding of no discrimination.
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. (Aug. 5, 2015) (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").
As an initial matter, Complainant argued that the Agency's investigation was incomplete for the Supervisor did not participate in the investigation. We recognize that the report of investigation states that the Supervisor had retired from the Agency. We note that neither the Agency nor the EEOC has the power to compel testimony from a witness who no longer works for the Agency. Hopps v. Dep't. of Health and Human Serv., EEOC Appeal No. 0120120765 (Sept. 5, 2013).
On appeal, Complainant asserted that she was subjected to a pattern of retaliation. As such, we shall solely review her complaint as a claim of retaliatory harassment. It is well-settled that harassment based on an individual's prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on her prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. 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 on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that Complainant engaged in prior EEO activity. Complainant indicated that she had contacted an EEO Counselor alleging that she had been subjected to discrimination based on sex. The matter was resolved informally. We presume that Complainant has shown that the conduct was unwelcomed. We now turn to the issues of whether the harassment occurred because of her prior EEO activity. The Deputy Manager and the Manager participated in the investigation. The Deputy Manager stated that she was present when Complainant was issued the Letter of Reprimand listed in event (1). She noted that the Letter was issued because Complainant failed to follow Agency policy regarding the scheduling of educational field trips. The Deputy Manager indicated that internally, the Agency had determined to schedule field trip visits on Thursdays and Fridays, however, Complainant had schedule a field trip outside of those days. Complainant argued that another employee had engaged in a similar action. The Deputy Manager noted that the other employee was a temporary appointee who was terminated effective November 5, 2012. The Manager stated that the Supervisor and Deputy Manager had several performance issues with Complainant over time and he tried to get them to be more firm with her. He indicated that Complainant gave excuses for not completing her work and when they removed the excuses, she still failed to complete her assigned work. He argued that the Agency had no recourse except to issue her a Letter of Reprimand.
Following the Letter of Reprimand, Complainant was issued a rating of "Unsatisfactory." The Deputy Manager stated that she attended meetings between Complainant and the Supervisor. Complainant was rated Unsatisfactory in critical element 1 relating to Interpretive Programs and assisting with special events planning. She also received a "Minimally Successful" in critical element 4 for "Welcome and Orient Visitors." The Deputy Manager noted that the Supervisor provided Complainant with corrections but she would not incorporate the suggestions or make the necessary edits. The Manager supported the assertion that Complainant's performance was not at the GS-5 level for her position.
In August 2012, Complainant was issued a Performance Improvement Plan (PIP). The Deputy Manager noted that she worked in coordination with the Supervisor and Human Resources. She indicated that they met and agreed that a PIP was the next appropriate step to address Complainant's continued performance issues. They believed that the PIP would provide Complainant with time to deal with her performance issues because their past efforts did not work. The Deputy Manager noted that Complainant was inconsistent with the submittal of outlines, missed numerous deadlines in preparing for two events, and did not grasp expectations. The Deputy Manager stated that she did not have any other employees who had similar performance issues as Complainant.
In response to the Deputy Manager and Manager, Complainant asserted that these events occurred in retaliation for her prior claims against the Supervisor. She believed that this would only end in her termination. Based on the totality of the evidence in the record, we find that Complainant has failed to provide evidence to establish that the actions which she believed created a pattern of harassment was in fact due to her prior protected activity. Therefore, we determine that Complainant has not shown that she was subjected to unlawful retaliatory harassment.
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 decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 8, 2016
__________________
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.
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