Cindi L. Ogden, Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 15, 2009
0120080767-Ogden (E.E.O.C. Oct. 15, 2009)

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