Cecelia A. Fields, Complainant,v.Paul F. Prouty, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionNov 19, 2009
0120073204 (E.E.O.C. Nov. 19, 2009)

0120073204

11-19-2009

Cecelia A. Fields, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.


Cecelia A. Fields,

Complainant,

v.

Paul F. Prouty,

Acting Administrator,

General Services Administration,

Agency.

Appeal No. 0120073204

Hearing No. 110-2004-00257X

Agency No. GSAR042003001

DECISION

On July 6, 2007, complainant filed an appeal from the agency's June

6, 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

ISSUE PRESENTED

Whether the AJ's rulings that complainant failed to establish

discriminatory harassment and termination, are supported by substantial

evidence.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an employee of Lionel Henderson, Inc. (hereinafter referred to as

LH, Inc.), as a Secretary II at the agency's Public Buildings Service,

Property Management Center in Charleston, South Carolina. On November

19, 2002, complainant filed an EEO complaint alleging that she was

discriminated against on the bases of race (African-American), religion

(Christianity), and color (black) when she was subjected to harassment

from March 2001 until the day she was terminated from her employment

with Lionel Henderson Corporation on May 16, 2002.

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 timely

requested a hearing. The AJ granted the agency's motion for summary

judgment and held that complainant failed to state a claim because she

was a contract employee and not an employee of the agency, and in the

alternative, found that complainant failed to establish a prima facie

case of discrimination based on race, color, and religion, and hostile

work environment harassment. The agency adopted the AJ's ruling.

On April 9, 2003, complainant appealed the decision to the Commission,

arguing that she satisfied the common law test for being an employee of

the agency and that the AJ improperly denied her a hearing. The agency

filed opposition to complainant's appeal. In Fields v. General Services

Administration, EEOC Appeal No. 01A51814 (April 14, 2006), we reversed

the AJ's ruling and held that complainant stated a claim that could be

addressed by the Commission. The case was remanded to the Charlotte

District Office and assigned for hearing. An AJ held a hearing on March

23, 2007 and issued a decision on May 4, 2007.

AJ Decision

The AJ found as follows: complainant alleges that her supervisor

(S1) (Caucasian, white. Christian) subjected her to harassment and

discrimination as soon as she became supervisor. Complainant identified

the following examples: (1) her coworker (C1) was not disciplined for

an AWOL charge, (2) another coworker (C2) was not disciplined for using

the government credit card for personal use, (3) after returning to work

after her lunch break, during which she read her Bible, she heard her

supervisor say "Maybe we can get CeCe to pray for it" and everyone was

laughing, and (4) profanity was used in the work place.1

As to the harassment claim, the AJ found that, taken individually or

together, the allegations of harassment raised by complainant in her

complaint are not severe enough to unreasonably interfere with her

work performance. The AJ noted that complainant never expressed to S1

that she was personally offended by S1's use of the term "Goddamnit."

Additionally, as to S1's assertion that "Maybe we can get CeCe to

pray for it," this was a one-time incident, and not severe enough to

constitute unlawful harassment. The AJ also found that the coworkers who

complainant asserts were not disciplined for their conduct were not proper

comparators. As to the termination claim, the AJ found that assuming

complainant established a prima facie case of race, color, and religion

discrimination; the agency satisfied its burden by presenting evidence

that LH, Inc. terminated complainant's employment after being contacted

by GSA regarding their dissatisfaction with her work. The AJ found that

the agency presented evidence that S1 did not want to continue working

with complainant because of her work performance deficiencies, which she

believed would negatively affect her warrant license, and her negative

attitude.2 The AJ found no evidence of pretext. The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant requests a new hearing, arguing among other things,

that although the AJ found that complainant had performance problems

and attitude problems, there is no such evidence. Additionally, she

reiterates her argument that similarly-situated individuals outside her

protected groups were treated more favorably with regards to discipline.

Additionally, she asserts that her journal entries (which are in the

record) clearly show that she was subjected to discrimination.

In reply, the agency contends that the AJ decision was correct, noting

that complainant's comparators are not similarly-situated because

complainant was a contractor, and the coworkers have different job titles

and very different job duties. The agency also asserts that complainant's

journal entries are one-sided and there is no evidence that they were

made contemporaneously with the events described. The agency also lists

numerous examples of complainant's performance deficiencies, as well as

examples of how S1 attempted to assist complainant. The agency notes

that because complainant was a contract employee, the agency did not have

the usual responsibility to maintain documentation of her performance.

The agency contends that complainant has raised no new arguments, and

asks the Commission to affirm the final order.

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. 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. 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 110, Chapter 9, � VI.B. (November 9, 1999).

Hostile Work Environment Harassment

To establish a claim of harassment based on race, color, or religion,

complainant must show that: (1) she is a member of the 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 the 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 to

the employer. Humphrey v. United States Postal Service, EEOC Appeal

No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

Further, the incidents must have been "sufficiently severe and pervasive

to alter the conditions of complainant's employment and create an abusive

working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the present case, we find that the alleged harassment, taken

together, is not severe or pervasive enough to be considered unlawful.

In so finding, we note that the record shows that S1's management

style was severe and harsh, and utilized a different approach to much

of the work than what complainant was accustomed. Additionally, the

record shows that S1 often used profanity, and she testified that she

knew this was unprofessional. A harsh and severe approach to managing

employees is not equivalent, however, to discrimination. Accordingly,

the Commission finds that the AJ's finding that discriminatory harassment

was not established, is supported by substantial evidence in the record.

Termination

The allocation of burdens and order of presentation of proof in a

Title VII case alleging disparate treatment discrimination is a three

step procedure: complainant has the initial burden of proving, by a

preponderance of the evidence, a prima facie case of discrimination;

the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for its challenged action; and complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

offered by the employer was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Although complainant denies that her attitude and work performance

were deficient and points out that she received positive feedback for

her work, this is inadequate to establish that management's reasons for

terminating her are mere pretexts for discriminatory animus. The record

contains substantial and specific testimony about what management

viewed as complainant's performance deficiencies. The AJ's finding

that discrimination was not proven as to her termination is supported

by substantial evidence in the record.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the final

order.

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

______11/19/09____________

Date

1 Specifically, complainant alleged that on her first day on the job,

S1 did not introduce herself but rather "arrogantly" told complainant

to get her things and move them into the office. On another occasion

when S1 had laryngitis, she used notes on post-its to communicate.

According to complainant, S1 needed to discuss errors with the RWA

(reimbursable work authorization). Since she was unable to talk,

she wrote her responses and then "tossed" them to complainant to read.

Complainant testified that "a couple of times, I had to pick the paper

up from the floor. I felt that was very degrading and unnecessary."

She alleges that S1 yelled at her on several occasions and used profanity

towards her. Specifically, on one occasion, she recalled S1 looking in

the file drawer (away from complainant) and remarking "goddamn, these

files are a mess. Complainant indicated that S1 never apologized for this

"outright disrespect for [her] belief." Complainant admitted, however,

that the statements were not directly to her.

2 S1 admitted discussing work product and performance issues with

complainant. She specifically recalled complainant changing financial

documents without her approval. S1 stated that she repeatedly advised

complainant that she was not authorized to make any changes without

her approval. She further testified that when she began working in

the Charleston offices, the files (maintained by complainant) were

disorganized. S1 indicated that the job was run differently before her

arrival and she believed complainant resented her as her supervisor and,

in fact, "wanted her job." She also stated that complainant did not

respect her as a supervisor and repeatedly questioned her directions.

S1 denied that she asked LH, Inc. to terminate complainant as an employee,

but only wanted complainant removed from her contract.

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