0120161262
04-04-2018
Christal G.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Christal G.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120161262
Hearing No. 430-2014-00074X
Agency No. 9B1C13009F16
DECISION
On March 5, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 9, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether substantial evidence in the record supports the Administrative Judge's (AJ) determination that the Agency did not discriminate against Complainant on the bases of race (Black), color (Black), national origin (Jamaican), sex (female) and reprisal when she was issued a suspension, proposed suspensions, and harassed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-11 at the Agency's 633rd Contracting Squadron at Joint Base Langley-Eustis facility in Virginia. On May 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), national origin (Jamaican), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On March 18, 2013, her first level supervisor (S1) and third level supervisor (S3) issued her a three-day suspension
2. On April 23, 2013, S1 and S3 issued a second notice of proposed five-day suspension with no pay.
3. In July 2013, her second level supervisor (S2) informed her that the April 23, 2013, suspension would be withdrawn and a new five-day suspension notice, with an additional charge, would be issued.
The record reveals that in April 2012, the responsible management official, S1, assumed responsibility as the supervisor of Complainant's unit. At this early stage, S1 had a staff presentation where he set forth his expectations and requirements for being at work, being on time and reporting directly to him when there were any issues concerning not being able to meet his on time/on duty standards. One of Complainant's co-workers and comparators (CW1) testified in her investigative affidavit that S1 "was a stickler for being at work on time and in the very beginning he let us know about this."
At the hearing, S1 testified that upon his arrival, he observed a lack of discipline in the unit with respect to the use of leave and arriving to work on time. During the initial months of his tenure S1 observed, documented and admonished his staff on their leave and timeliness practices, but did not issue any formal reprimands. According to his testimony, Complainant was often late and did not follow his notification procedures. In this regard, S1 met with Complainant on at least four occasions concerning her punctuality deficit.
Another co-worker (CW2) who worked in a different building than Complainant, but the same organization, presented testimony that Complainant texted her about the fact that she (Complainant) and S1 did not get along. With respect to CW2's interaction with S1, she indicated that S1 "was one of the toughest supervisors I have ever had and was big on accountability. As long as you informed him what was going on it was okay. I had constant communication with (S1) informing him of my where about (sic) and if I was going to be late I would put in for leave. He never had a problem with me because I always let him know what was going on."
For her part, Complainant referenced a number of issues that contributed to her tardiness, including traffic and having to drop her child off at school before she came to work. As a resolution, Complainant requested that she be permitted to work a "maxi flex" schedule, which permitted a more accommodating arrival and departure time. S1 denied this request, indicating that Complainant's "inability to report to work on time and be accountable and responsible did not warrant the use of a Maxiflex schedule." However, S1 did indicate that he would reconsider Complainant's request if she could show that she could be on time for two months. While S1 counseled several other staff members about what he considered leave abuses, he indicated that Complainant's issues were ongoing.
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). Complainant timely requested a hearing, and the AJ held a hearing on December 15, 2015, and issued a decision on December 31, 2015. In her decision, the AJ found that there was not sufficient credible evidence to substantiate Complainant's claims. While S1 was a strict supervisor, he set forth his expectations to the entire staff at the outset. The AJ further concluded that there was no evidence that any of the other employees came close to the number of leave and tardiness infractions as Complainant.
The AJ also determined that Complainant's reprisal claim had no merit. The AJ simply found S1's testimony more credible than that of Complainant when he indicated that he did not threaten to hold additional information against Complainant if she initiated an EEO complaint. The AJ also found credible S1's testimony that he encouraged Complainant to contact the EEO office.
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 contends, among a number of things, that the AJ prejudged the case before considering all the evidence and testimony. She further contends that the AJ's decision mischaracterized her complaint "to make it appear as if I was a disgruntled and unruly employee that failed to follow the rules." For its part, the Agency primarily reiterates its position that Complainant failed to show that its legitimate nondiscriminatory reasons for its actions were pretextual and that the AJ properly assessed the credibility of all witnesses.
STANDARD OF REVIEW
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, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
The instant appeal can be examined under both disparate treatment and hostile work environment analyses. In order to prevail on 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of hostile work environment harassment, Complainant must show that: (1) she belongs to a 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 her 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 Agency. 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 Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 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 instant matter, we assume without so finding that Complainant established a prima facie case or disparate treatment discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, Complainant was suspended and issued notices of suspension because she simply failed to adhere to her supervisor's requirements that she be on time and follow the proper attendance procedures.
Moreover, we find that Complainant failed to show that the alleged actions were based on any of her protected classes. In so finding, we defer to the AJ's credibility determinations with respect to Complainant's suspension, proposed suspensions, alleged harassment and agency actions based on reprisal. In the instant matter, Complainant failed to show that the Agency's non-discriminatory explanations were a pretext for unlawful discrimination under a disparate treatment analysis. Additionally, Complainant failed to establish any claim of a hostile work environment; the AJ's findings are supported by substantial evidence in this regard as well. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final agency order because substantial evidence supports the Administrative Judge's ultimate finding, that unlawful employment discrimination was not shown.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__4/4/18________________
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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