0120080289
01-27-2011
Brenda G. Howell, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Brenda G. Howell,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120080289
Hearing No. 510-2007-00094X
Agency Nos. HS 05-ICE-000633, ICE-05-E043
DECISION
On October 22, 2007, Complainant filed a timely appeal from the Agency's
September 13, 2007, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
order.
ISSUE PRESENTED
The issue presented is whether the decision of the EEOC Administrative
Judge (AJ) that Complainant was not subjected to harassment or disparate
treatment based on her sex, age, or in reprisal for her prior protected
EEO activity is supported by substantial evidence in the record.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant
worked as a Supervisory Special Agent in the Agency's District Office in
Miami, Florida. On November 8, 2004, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of sex
(female), age (46 years old), and in reprisal for prior protected EEO
activity arising under Title VII when:
(1) Between July and September 2001, Complainant was subjected to a
hostile work environment when her supervisors acted in a physically
aggressive manner toward her, made demeaning comments to and about her,
unduly scrutinized her work activities, and gave her unfounded progress
reviews;
(2) During July 2001, she was served with memoranda regarding her
purported violation of Agency policies and procedures;
(3) From July through September 2001, management denied leave requests,
and following a return from a work-related injury, forced Complainant
to use personal leave when it failed to properly adjust her work hours
consistent with her doctor's orders; and
(4) Between July and September 2001, she was given different
orders, provided insufficient resources to appropriately handle her
responsibilities, and she was not given the same opportunities for career
advancement through career-enhancing assignments, collateral duties,
and trainings.
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 AJ. Complainant timely requested a hearing,
which the AJ held on May 16 and May 17, 2007. The AJ issued a bench
decision on June 1, 2007, finding no discrimination. Specifically, the
AJ found that Complainant failed to establish that she was subjected
to severe or pervasive harassment or disparate treatment based on
her sex, age, or in reprisal for her prior protected EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ's finding of no discrimination
"is based upon a flawed procedure resulting from ineffective assistance
of counsel." She argues that her representative's mistakes had an
adverse effect on her case, and she urges the Commission to vacate
the Agency's final decision and remand the matter for a new hearing.
Complainant argues that the AJ's refusal to grant either of her motions
for a continuance of the hearing "evidenced bias" against her. She also
argues that the AJ erred in finding no discrimination because the record
evidence establishes that discrimination occurred. In response, the
Agency urges the Commission to affirm its final decision because the AJ's
decision finding no discrimination is supported by substantial evidence
in the record.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
Chap. 9, at � VI.B. (Nov. 9, 1999).
Harassment
Harassment is actionable only if the incidents to which Complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [Complainant's] employment and create an abusive working
environment." Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993); see
also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998);
Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
To establish a claim of harassment, Complainant must show that: (1) she is
a member of a statutorily protected class and/or was engaged in prior EEO
activity; (2) she was subjected to unwelcome verbal or physical conduct
related to her membership in that class and/or her prior EEO activity;
(3) the harassment complained of was based on her membership in that
class and/or 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 Roberts
v. Dep't of Transp., EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further,
the harasser's conduct is to be evaluated from the objective viewpoint
of a reasonable person in the victim's circumstances. EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994).
Upon review, we find that Complainant failed to establish that she was
subjected to a hostile work environment. Complainant alleged that she
was repeatedly subjected to harassment, including when her supervisor
acted in a physically aggressive manner toward her when he moved close
to her face and yelled at her in July 2001, made demeaning comments
to and about her, unduly scrutinized her work activities, and gave her
unfounded progress reviews. However, she failed to establish that any of
the alleged harassment occurred because of her sex, age, or in reprisal
for her prior protected activity. Moreover, we find that the alleged
actions were not sufficiently severe or pervasive to create a hostile
work environment.
Complainant's supervisor, the Assistant Special Agent in Charge
(ASAC), testified that Complainant was very capable, but she was also
a difficult individual to manage. Hearing Transcript (HT) at 349.
The Deputy Assistant District Director for Investigations, Complainant's
second-level supervisor during the relevant time period, also described
Complainant as someone who was confrontational, argumentative, and did
not take criticism well. Id. at 577-78. The ASAC testified at the
hearing that he argued with Complainant in July 2001 because she had
repeatedly ignored his requests to meet with him regarding her annual
performance evaluation, and, on one occasion, she refused to meet with
him because she was busy applying for another position. Id. at 384-88.
While the record strongly suggests that Complainant did not get along
with the ASAC, multiple witnesses testified that the ASAC micro-managed
all of his employees. Further, we note that EEOC regulations are not
to be used as a "general civility code." Rather, they forbid "only
behavior so objectively offensive as to alter the conditions of the
victim's employment." Oncale, 523 U.S. at 81. In viewing the events as
a whole, Complainant has not established the incidents had the purpose
or effect of unreasonably interfering with her work performance and/or
creating a hostile work environment.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of
discrimination, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of this decision, we assume without so finding that
Complainant established a prima facie case of sex, age, and reprisal
discrimination. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The ASAC testified at the
hearing that he used progress reviews to cite potential deficiencies
"without outright slamming the employee" and that he did not feel that
Complainant received a negative review. HT at 429. He testified that
he issued Complainant memoranda in July 2001 to document his concerns
regarding discrepancies with her time sheet and her failure to complete
a work assignment by a specific deadline. Id. at 362-64, 373-74. With
respect to Complainant's leave and pay allegations, the ASAC testified
that he initially denied Complainant's request for continuation pay when
she returned to work after suffering an on-the-job injury based upon
advice given to him from personnel. Id. at 412-13. However, this error
was later remedied, and Complainant was able to receive continuation
pay. Id. The ASAC also testified that Complainant's unit, as well
as another unit, lost employees over time due to staffing shortages.
Id. at 420-21. The ASAC testified that Complainant did not request
any collateral duties, and he denied Complainant's contention that he
refused to allow her to participate in the Agency's mentoring program.
Id. at 422-25.
Complainant now bears the burden of proving, by a preponderance of
the evidence, that the Agency's articulated reasons for changing her
assignment and denying her requests for a work clothing allowance were
pretext for discrimination. Pretext may be shown either directly, by
showing that a discriminatory reason more likely motivated the employer,
or indirectly, "by showing that the employer's proffered explanation
is unworthy of credence." Burdine, 450 U.S. at 256. Rejection of the
employer's proffered reason permits the trier of fact to "infer the
ultimate fact of intentional discrimination." Hicks, 509 U.S. at 511.
Upon review, we find that the AJ's determination that Complainant
failed to establish pretext is supported by substantial evidence in the
record. We find no evidence that the Agency's actions were motivated by
discriminatory animus towards her protected classes. Although Complainant
disagrees with the testimony provided by Agency officials at the hearing
and challenges the AJ's credibility determinations, we note that the
credibility determinations of an AJ are entitled to deference due to the
AJ's first-hand knowledge, through personal observation, of the demeanor
and conduct of the witnesses at the hearing. See Esquer v. U.S. Postal
Serv., EEOC Request No. 05960096 (Sept. 6, 1996). We find no evidence
in the record to warrant disturbing the AJ's post-hearing findings.
Finally, we find no evidence in the record that the AJ processed
Complainant's case in an improper manner or demonstrated a bias against
her. See 29 C.F.R. � 1614.109. With respect to Complainant's arguments
regarding the manner in which her representative handled her case, we
note that, while a complainant is entitled to the representative of his
or her choice, our regulations are silent with respect to the competence
of a complainant's chosen representative. See 29 C.F.R. � 1614.605(a).
We further note that a complainant is responsible for proceeding with
the complaint whether or not he or she has a designated representative.
29 C.F.R. � 1614.605(e). Accordingly, Complainant's request for a new
hearing is denied.
CONCLUSION
The Commission finds that the AJ's factual findings are supported by
substantial evidence in the record. We discern no basis to disturb
the AJ's decision. After a careful review of the record, including
arguments and evidence not specifically addressed in the decision,
the Agency's final order is AFFIRMED.
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 (Nov. 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
January 27, 2011
Date
2
0120080289
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080289