0120080767-Ogden
10-15-2009
Cindi L. Ogden, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Cindi L. Ogden,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080767
Hearing No. 530-2006-00168X
Agency No. 5N1L05030
DECISION
On November 16, 2007, complainant filed an appeal from the agency's
November 9, 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 accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Work/Life Specialist, GS-0101-09, at the Family Support Center
(FSC), 305th Mission Support Squadron (MSS), McGuire Air Force Base (AFB)
located in New Jersey. Complainant was hired on July 11, 2005 into a
permanent position. Complainant was under a one-year probationary period.
In this position, complainant was responsible for administering a variety
of programs at the FSC. These programs were previously administered by
a trainer (T1) who had some responsibility for complainant's training.
On August 3, 2005, complainant entered the office of T1 asking where to
locate a training catalog. T1 acknowledged being under a lot of stress
when complainant entered her office and that she had a migraine headache.
T1 went to complainant's office and searched through her drawers and
cabinets to show complainant where the requested catalogs were located.
Complainant alleges that T1 touched her during this incident, but T1
denies this.
After the incident, complainant went to her first line supervisor (S1),
but he was on the telephone. Complainant then went to Senior Master
Sergeant JG (SMSgt) who had an office near S1. SMSgt did not bring the
matter to S1 on that day.
On August 4, 2005, S1 received a complaint from complainant indicating
that T1 had acted aggressively towards her by jumping from her desk,
entering complainant's office, pulling catalogs from the credenza, and
violently placing them on complainant's desk. Complainant also alleged
that T1 had grabbed her arm. Also on August 4, 2005, after a staff
meeting, complainant and T1 had a discussion regarding a class that they
were both teaching that evening. Complainant alleged that T1 grabbed
her again, and summoned her back to the conference room doorway.
Right after the above incident allegedly occurred, S1 conducted a
meeting with complainant and T1. S1 testified that the purpose
of the meeting was to discuss the incidents on August 3 and 4, 2005
between the two employees. During the meeting, T1 acknowledged that
on August 3, complainant requested the catalog, she got up from her
desk, went to complainant's office to find the materials, and placed
them on complainant's desk. T1 denied having any physical contact
with complainant. As for the incident on August 4, T1 testified that
because complainant seemed upset and emotional, she reached out to take
hold of complainant's arm as complainant was leaving the conference room.
According to T1, her intention was to determine whether complainant was
all right. During the meeting, S1 told T1 that it was wrong to touch
coworkers in that manner. At that point, T1 apologized to complainant.
S1 asked complainant what could be done to move forward, but complainant
became emotional and left the meeting. Therefore, the discussion did
not continue, and the matter was not resolved.
On August 5, 2005, S1 sent an e-mail to the Base Commander (BC) regarding
the two incidents between complainant and T1. As a result, T1 was
instructed to report to work at the Building 1903, beginning on August 8,
2005, instead of her office at the same location as complainant.
On August 7, 2005, T1 sent out an e-mail using the FSC group e-mail
address, making everyone, including her coworkers, aware of her new
telephone number. Complainant received the e-mail and notified BC
that she was still getting e-mails from T1. T1 was directed to delete
complainant's name from all her email lists.
On August 17, 2005, management initiated a Commander Directed
Investigation (CDI). The purpose of the CDI was to examine the issues
raised by complainant through an investigating officer from outside of
the unit. Prior to the beginning of that investigation, complainant
made additional allegations regarding harassing and threatening telephone
calls received from the husband of a coworker. BC was informed of these
allegations and added them to the investigation.
On August 29, 2005, the investigating officer on the CDI (IO), called
and introduced herself to complainant via telephone. IO informed
complainant that she had been assigned to investigate her allegations,
and she attempted to set up a time for a meeting at some point in the
future with complainant. However, complainant refused to cooperate with
IO and hung up the telephone during the conversation. Subsequently, IO
e-mailed complainant advising her that her failure to cooperate in the
investigation could result in disciplinary action up to and including
removal. Complainant never responded to the e-mail. Therefore, on
August 30, 2005, complainant was issued a notice of termination during
her probationary employment.
On September 6, 2005, complainant filed an EEO complaint alleging that she
was discriminated against and was subjected to hostile work environment
on the bases of race (Black) and sex (female) when:
1. on August 3, 2005, she attempted to inform her first line supervisor
(S1) of an incident that occurred when after inquiring from T1 about where
to locate a training catalog, T1 responded by storming into complainant's
office and physically assaulting her by grabbing her by the arm while
yelling and rambling about "having a monster headache," the budget, and
trying to show her something, as she threw open her storage cabinets,
snatched her desk drawers, began pulling files out of her desk drawers
and slamming things around;
2. on August 4, 2005, after reporting the incident that occurred on August
3, 2005 to S1, he [S1] failed to appropriately respond to her complaints
and attempted to justify T1's conduct by stating "she is a nice person,
she is a hard worker, she knows a lot of people, she is from Pennsylvania
and I am from the mid-west, you must be misunderstanding;"
3. on August 4, 2005, in a staff meeting and in presence of all of the
attendees, S1 allowed T1 to continuously interrupt and talk over both
complainant and S1 each time S1 and complainant attempted to communicate,
without correcting her; and
4. on September 6, 2005, she became aware that S1 failed to take
appropriate disciplinary action against the alleged offender, T1,
regarding the incident on August 3, 2005, and that created a hostile
work environment which complainant believed might be aimed at forcing
her resignation or termination during her probationary period.
Later in September 2005, complainant amended her complaint to claim
that she was being discriminated against and subjected to continuous
harassment by S1, and BC, on the bases of race (Black), sex (female),
and in reprisal for prior EEO activity when:
5. S1 allowed T1 to cancel much of her employment training;
6. S1 allowed T1 to cancel all but one of the classes complainant
was initially instructed to facilitate, resulting in a hostile work
environment;
7. they continued to allow T1 to contact her via e-mail and direct her
daily duties after being directed in person and in writing, via e-mail,
to have no contact with complainant until the completion of an EEO
inquiry and until further notice;
8. they failed to prevent a federal employee from outside of the agency
(a coworker's husband) from continually calling her, leaving harassing
and threatening phone messages on her voice mail at work and even showing
up at her place of employment, although a Colonel (C1), the Inspector
General, and other base officials advised her that the outside employee
was instructed to stop the harassing calls and to stop interfering with
a federal EEO inquiry, resulting in a hostile work environment;
9. BC, C1, and S1, falsely accused her and terminated her from her
position as Work/Life Specialist, GS-0101-09, based on the charge of
refusal to cooperate in a Commander Directed Investigation (CDI); and
10. BC, C1, and S1, failed to advise her of the appointment of IO as the
investigator assigned to conduct the CDI or to provide her a scheduled
time to meet with the investigator.
On October 21, 2005, complainant amended her complaint alleging
discrimination based on her race (Black), sex (female) and in reprisal
when:
11. BC denied her a copy of the Security Forces Report of Investigation
into her allegation that she was physically assaulted by her co-worker
Ms. DB;
12. BC failed to provide her a copy of the CDI he ordered to take place;
13. BC failed to provide her a copy of findings or his administrative
decision regarding the CDI;
14. a Labor Law Attorney, refused to afford her copy of the Security
Forces Report of Investigation, although it was part of her EEO case file;
and
15. management failed to respond to her requests for information under
the Freedom of Information Act (FOIA) and the Privacy Act with regard to:
the CDI and the Security Forces Report of Investigation.
By the same letter dated January 13, 2006, the agency dismissed claims
(5), (6), (10) and (15) on the grounds that it failed to state a claim
under 29 C.F.R. � 1614.107(a)(1) or it states the same claim that is
pending before or has been decided by the agency or the Commission.
Because complainant did not challenge the dismissal of these claims with
the AJ, we shall not address such claims. Furthermore, we see no error
in the agency's actions and we find that all such claims except (15)
were nevertheless considered as part of the harassment claim.
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 held a hearing on August 1 and 2, 2007 and
issued a decision on August 17, 2007. The AJ concluded that complainant
failed to establish a prima facie case of disparate treatment based on
her race or sex. The AJ found that complainant had not shown that she
was treated differently than similarly situated employees who were not
in her protected classes. Specifically, the AJ found that complainant
has not presented sufficient evidence to show that she was denied either
the opportunity to train others or the opportunity to seek training
for herself. The AJ found that there is no evidence in the record
to show that other employees in complainant's division had training
opportunities that she did not. Regarding complainant's termination,
the AJ found that there is no evidence to show that others who engaged
in similar conduct were treated differently.
The AJ further found that complainant had established a prima facie case
of reprisal. Specifically, complainant has shown that she engaged in
prior protected activity when she contacted the EEO Counselor on August 5,
2005, and within a month she was terminated from her employment. However,
the AJ concluded that the agency articulated legitimate nondiscriminatory
reasons for her termination. Specifically, the AJ found that complainant
was terminated for failing to cooperate with a CDI by hanging up the
telephone on the investigator and failing to respond to her e-mail.
Finally, the AJ concluded that complainant had not shown a prima facie
case of harassment. The AJ found that complainant did not prove that
the alleged actions occurred because of her race, sex or in reprisal
for her prior EEO activity. Moreover, the AJ determined that alleged
actions were not so severe or pervasive as to alter the conditions of
complainant's employment and create a hostile work environment, and
that assuming arguendo that complainant established a prima facie case,
the agency took immediate and appropriate remedial action. The record
reveals that after complainant's allegations, the agency immediately
removed T1 from complainant's workplace. The AJ also noted that when
complainant raised new allegations of harassment by a coworker's husband,
the agency incorporated all of complainant's allegations into a CDI,
but complainant refused to cooperate with the CDI.
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 raised the same arguments which were considered,
and addressed, by the AJ. Complainant maintained that she was terminated
from her employment in retaliation for her protected EEO activity rather
than as a result of potential violations of regulations. Complainant also
argues that at the hearing the AJ prevented her from entering evidence
of reprisal discrimination by cutting off her questioning of a witness.
In response, the agency requests that we affirm its final order
implementing the AJ's decision.
ANALYSIS AND FINDINGS
At the outset, we note that complainant argues on appeal that the AJ
prevented her from entering evidence of reprisal when, at the hearing,
he interrupted her questioning of a witness. We find the AJ's error was
not harmful. The record reveals that, at the hearing, the AJ interrupted
complainant's questioning of a witness alleging that she did not have
a reprisal claim. However, later at the hearing the AJ recognized his
error and provided complainant with another opportunity to place into
the record any evidence supporting her claim of reprisal discrimination.
The AJ analyzed complainant's entire claim in part as a reprisal claim.
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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally 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 prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record.
Accordingly, we concur with the AJ's finding that complainant failed to
proffer any evidence to show that the agency's actions were motivated
by discriminatory or retaliatory animus. The AJ properly found that
the agency articulated legitimate, non-discriminatory reasons for its
actions which complainant failed to show were a pretext for discrimination
based on her race, sex, or in reprisal for her prior protected activity.
The record reveals that complainant was terminated during her probationary
period because she failed to cooperate with the CDI. The record also
reveals that complainant was only denied the opportunity to present
the "Colors Course" because she was not certified to teach that
course. Further, the record shows that complainant did not have the
opportunity to take a specific management course because it was only
meant for supervisors.
We also concur with the AJ's finding that complainant failed to provide
sufficient evidence in the record to show that the cumulative incidents
she cites are sufficiently severe or pervasive to create a hostile work
environment. We further find no persuasive evidence that the alleged
harassment was motivated by unlawful animus towards complainant's race,
sex, or in reprisal. Moreover, the record reveals that the agency
took appropriate action after complainant's harassment allegations,
but complainant refused to cooperate with the internal investigation.
Therefore, complainant has provided no evidence from which liability
could be imposed on the agency for the co-worker's or co-worker's husband
conduct. 1
We further find no error in the AJ's decision because the record was
adequately developed, and there is no evidence that the AJ wrongly weighed
the evidence or that he made impermissible credibility determinations
in favor of the agency.
CONCLUSION
Therefore, we discern no basis to disturb the AJ's decision. It is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
final agency order because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.
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
October 15, 2009
_________________
Date
1 To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2) s/he 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; and (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. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
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0120080767
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013