Colleen M.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 22, 2020

0120181923 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colleen M.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 0120181923 Hearing No. 560-2015-00277X Agency No. ARFTLEAV14JUL02717 DECISION 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 April 17, 2018, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 an Audio-Visual Production Specialist at the Agency’s Army Installation Management Command in Fort Leavenworth, Kansas. Complainant transferred from Korea via the Agency’s Priority Placement Program on July 13, 2014. Complainant stated that when she spoke with her first line supervisor (S1) he informed her that she should not use her personal cell phone to dial 911 because they may not be able to pinpoint her location, and the best way to call 911 was through the landline. Report of Investigation (ROI) at 555, 559. 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. 0120181923 2 On July 15, 2014, Complainant met her coworker (CW), and the two worked alone in a basement television studio. Complainant stated that CW asked Complainant about her race, and he informed her that he had not worked with a woman in a long time. CW also asked Complainant where she was staying, and she informed him that she was temporarily staying at a hotel near the airport. In addition, CW asked Complainant what type of car she drove. Complainant stated that CW stated the he did not like “the business of killing,” but if that is “what his bosses want, it has to be done.” Complainant stated that she also noticed that CW had a tattoo of a cross on his arm, and when she researched it, she learned that it was known to be used by the Ku Klux Klan. ROI at 555, 559-61, 574. On July 16, 2014, CW did not come to work, and Complainant noticed CW’s various dolls, such as a bronze statue with a “pink noose or tassel,” a monkey making a fist, a “naked white doll,” and a racoon or skunk.2 Complainant also saw CW’s tools, including screwdrivers, wrenches, and hammers. Complainant took photos of these items. ROI at 561, 657-63. On July 17, 2014, CW stated that he saw Complainant driving the previous night around 7:00 p.m., and that she drove too fast. Complainant stated that she also noticed scratches on her car where it looked as if someone tried to break into her car. ROI at 572. On July 18, 2014, CW stated that they needed to go under the floor of the studio to run some new wires. Complainant responded that they should put in a work order for electricians to handle that work. According to Complainant, CW stated that he liked Black people. ROI at 574. On July 21, 2014, CW took Complainant on a tour of post locations to show her where they would be doing some of their missions. Complainant stated that CW informed her that she would be working in the woods. Complainant stated that she informed CW that she wanted to leave because she was scared that CW wanted to stay in the shaded, wooded area. CW also showed Complainant a “hanging shed,” where CW stated that Nazis were hung. ROI at 561-62. Complainant stated that, on July 22, 2014, CW made more comments about Nazis, and that he would talk to himself. On July 24, 2014, CW asked Complainant to go to the roof to turn on a satellite dish. CW sent Complainant an email describing how they would set up the satellite system, and Complainant responded that she was not comfortable “messing with unconnected wires.” ROI at 563, 565. Complainant further stated that, on July 25, 2014, she saw a noose on top of some television monitors and took a photo of it. ROI at 566, 633. CW asked Complainant what she planned to do that weekend, and she informed him that she was driving to Kentucky. Complainant stated that CW made a comment that Complainant’s car may “blow up,” and he told Complainant a story about his car breaking down while he was out of town. CW then showed Complainant pictures of fireworks and stated that he was a licensed pyrotechnical expert. ROI at 567-68. 2 CW testified that these items were movie character toys from a fast food chain that he received from his niece and his graduation tassel, which he displayed as a reminder of his hard work. Hearing Transcript (HT) at 714-15. 0120181923 3 On July 28, 2014, Complainant went to the EEO office to discuss her concerns. The EEO Counselor strongly suggested that Complainant speak with her second-line supervisor (S2).3 Complainant informed S2 that she felt unsafe around CW, and S2 suggested that Complainant come up with a “safe word” to use to alert him of any danger. ROI at 568-70. S2 stated that, when Complainant reported to him that CW was out to kill her; had followed her back to her hotel; and had “props” in his office to kill her, he asked Complainant if she wanted him to talk to CW, and Complainant responded, “no.” S2 added that he gave Complainant the name of another employee to contact with the safe word, if she was unable to reach him. ROI at 650-51. Complainant stated that, on July 29, 2014, CW grabbed her arm and squeezed it to check if her arm was fat or muscle. Complainant and CW then went to the theater because CW stated that he needed to tie down some speakers. Complainant stated that she was afraid, and she went to speak with S2 once they returned to the office. S2 stated that he needed to speak with CW. ROI at 568- 70. S2 stated that, when he asked CW to remove the allegedly inappropriate display items, CW quickly did so. ROI at 652. On July 30, 2014, when Complainant arrived at work, she saw that the door was propped open, and was relieved that S2 had spoken with CW. ROI at 570. On August 5, 2014, Complainant noticed that someone had scratched her car. ROI at 571. Complainant strongly believed that CW keyed her car. S2 went to his supervisor (S3) to have Complainant temporarily reassigned because he did not feel that the two employees could continue to work together. Complainant was moved to the Garrison Commander’s Office on August 5 or 6, 2014. ROI at 652-54, 690. On August 8, 2014, Complainant filed a Petition for Protection from Stalking Order with the local court against CW. ROI at 487-89. On August 25, 2014, Complainant’s petition was denied for insufficient evidence. ROI at 492. On August 11, 2014, Complainant’s union representative (UR) emailed Agency leadership, with the subject line “Hate Crime Against [Complainant].” UR stated that CW committed hate crimes, and she asked for their help. ROI at 587-90. On August 13, 2014, the “Command” acknowledged receipt of the email and responded that it was taking the matter seriously. ROI at 596. On September 8, 2014, an investigating officer (IO) was appointed to conduct an informal investigation into Complainant’s allegations. The IO concluded that there was no proof of harassment by CW or S1. Additionally, IO stated that S1 took appropriate action as Complainant’s supervisor in addressing her allegations. IO noted that most of the allegations were “he said, she said,” and that both parties disagreed on what was said or done. For example, CW denied grabbing Complainant’s arm. IO also noted that CW denied having any tattoos, and the record contains photos of CW’s arms showing no tattoos. ROI at 327-341, 398-400. On October 1, 2014, Complainant was assigned to another detail assignment, as a Management and Program Analyst at the Plans, Analysis, and Integration Office. ROI at 53. 3 S1 was on leave July 24 through August 1, 2014. ROI at 454. 0120181923 4 Complainant’s temporary supervisor (TS) informed Complainant that she was no longer allowed to use official time to conduct union, EEO, or OSC meetings. Later in the afternoon, Complainant met with TS, who explained that there was a misunderstanding, and that Complainant was allowed to use official time. ROI at 617, 126. On November 18, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black/American Indian/White), national origin (Russian/German), sex (female), color (mixed/fair complexion), and disability (heart/thyroid disease) when: 1. from July 15, 2014, through November 17, 2014, she was subjected to a hostile work environment. Examples of the harassment include being stalked and threatened by CW, who attempted to get her into secluded areas, displayed threatening items in the office, and made numerous racial comments. Complainant also alleged that she was discriminated against based on her race, national origin, color, disability, sex, and in reprisal for prior EEO activity when: 2. on October 1, 2014, TS informed her that she would not be allowed official time for conducting union, EEO, or OSC meetings. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC AJ. Complainant requested a hearing. The AJ held a hearing with 14 witnesses. The AJ issued a decision on April 2, 2018, finding that Complainant did not establish that the Agency subjected her to a hostile work environment based on her color, disability, national origin, race, or sex, from July 15, 2014, through November 17, 2014; that the Agency discriminated against her based on disability when it did not grant her requested accommodation to telework;4 or that she was aggrieved when TS informed her that she would not be able to use official time for union, EEO, and OSC meetings. For Complainant’s harassment allegation, the AJ determined that the evidence did not establish that the incidents alleged by Complainant occurred because of her protected groups, or that they rose to the level of hostile or abusive. The AJ noted that Complainant testified that CW made comments related to race, color, sex, disability, and national origin. However, the AJ concluded that the comments, and CW’s grabbing of Complainant’s arm, did not amount to severe or pervasive conduct. Additionally, the AJ found that Complainant’s allegations related to being endangered by CW were not based on a reasonable interpretation of facts. 4 We note that Complainant’s claim that she was discriminated against when the Agency failed to provide a reasonable accommodation was not an accepted claim for investigation. However, we find that there was sufficient information in the record for the AJ to make a fair and reasoned determination on this claim. 0120181923 5 For example, the AJ noted in her decision that CW testified that he did not follow Complainant to her hotel and that, when he saw a black vehicle, he thought it was Complainant; after he spoke with Complainant, he realized that he was mistaken. Additionally, CW testified that, when he said that Complainant’s car may “blow up,” he meant that it may “break down” or “blow a gear train.” In response to Complainant’s allegation that CW was attempting to lure her into secluded places, S2 testified that, to reach some of the shooting locations, they needed to drive through the woods. The AJ noted that, while a reasonable employee might have found the incidents to be odd, random, or unpleasant, they were not objectively hostile, patently offensive, or abusive. Further, the AJ found that the Agency took prompt corrective action when it learned of Complainant’s allegations. S2 spoke with CW, who immediately removed the items and propped the doors open. The AJ also noted that Complainant did not immediately want to be separated from CW, and that it was only after her car was scratched that Complainant made it clear that she could not work with CW, and the two were separated. The AJ stated that the Commission has found that, unless a transfer is voluntary, it cannot constitute effective remedial action. In this case, Complainant’s move was requested and voluntary. Regarding Complainant’s November 7, 2014, request for telework as a reasonable accommodation, the AJ found that the Agency acted to adjust the temperature in Complainant’s office, and that there was no requirement to allow her to telework. The AJ noted that TS testified that the temperature was an issue for all the employees, and that she offered Complainant a heater, which she refused. The AJ stated that it is well-settled that Complainant does not get to select her accommodation. For claim 2, the AJ found that Complainant had not established that she suffered a harm or loss to a term, condition, or privilege of employment when TS provided her with inaccurate information. The AJ noted that, despite TS’s incorrect instructions that Complainant was to use her personal time or leave to attend union, EEO, or OSC meetings, she corrected herself the same day, and apologized to Complainant. The AJ also noted that it was undisputed that Complainant did not request any official time, nor was she denied any official time. The AJ concluded that Complainant did not demonstrate by a preponderance of the evidence that the Agency unlawfully discriminated against her on any basis. The Agency subsequently issued a final order fully adopting the AJ’s finding that Complainant did not prove that the Agency subjected her to discrimination as alleged.5 5 The Commission's regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Complainant submitted an initial brief with her appeal on May 18, 2018. However, we find that her second brief, filed on July 10, 2018, in response to the Agency’s opposition brief, is not timely. As such, we will not consider the arguments in Complainant’s second brief. Even if we considered the brief, it would not alter our findings of no discrimination. 0120181923 6 ANALYSIS AND FINDINGS 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. Credibility Determinations 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 Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). In this case, the AJ found that Complainant was not credible when she testified that she never asked to be moved because email evidence showed that Complainant requested a new position in another organization. Additionally, the AJ determined that Complainant’s testimony lacked credibility regarding CW’s tattoo. During the Agency’s internal investigation, photos were taken of CW’s arms to show that he did not have any tattoos. Additionally, during the hearing, CW showed his arms to prove that he did not have tattoos. The AJ noted that Complainant argued that CW had evidence where a tattoo was removed (albeit in a different spot than Complainant previously indicated); however, the AJ found no evidence of a tattoo, or a removed tattoo, on CW’s arm. We find no evidence to contradict the AJ’s credibility determinations, and as such, we accept her credibility determinations. We also find that the AJ properly denied Complainant’s request to amend the complaint right before the hearing (we note the AJ allowed testimony of harassing incidents during the proper time frame). Also, we find no persuasive evidence that the AJ improperly handled the hearing and we find no persuasive evidence that the AJ was not neutral or fair. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 0120181923 7 liability to the employer. See Humphrey v. United States Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that substantial evidence in the record supports the AJ’s finding that Complainant did not establish that the Agency subjected her to a discriminatory hostile work environment based rom July 15, 2014, through November 17, 2014. Furthermore, even assuming, arguendo, that Complainant belongs to statutorily protected categories, and was subjected to unwelcome verbal and physical conduct based on her protected categories that rose to the level of severe or pervasive, we find that there is no basis for imputing liability to the Agency. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew, or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't of Air Force, EEOC Request No. 05920194 (July 8, 1992). In this case, there is substantial evidence in the record to support the AJ’s finding that the Agency took prompt corrective action. Complainant first informed S2 of her allegation that CW was harassing her on July 28, 2014. S2 testified that, when he asked Complainant if he could talk to CW about her allegations, she asked that he not. S2 testified that he asked Complainant multiple times what she wanted him to do, and she responded that she wanted to “work through it,” indicating that Complainant did not believe that the situation had gotten out of hand. However, the next day, Complainant requested that S2 speak with CW, which he did immediately. S2 testified that he informed CW of Complainant’s concerns, and he instructed CW to keep the door unlocked and to put away his “knickknacks.” Complainant discovered that someone had keyed her car on August 5, 2014, and management moved her to the Garrison Commander’s Office on August 6, 2014. HT at 1644, 1650, 1655, 1673, 1676. Additionally, on August 6, 2014, S2 sent an email to S3 requesting an inquiry into Complainant’s allegations that CW was trying to kill her and that he scratched her car. The Commission has held that, unless the transfer of the harassment victim is voluntary, it cannot constitute effective remedial action. See Philips v. U.S. Postal Serv., EEOC Appeal No. 01985285 (June 28, 2001); see also Van Wolken v. Dep't of Homeland Security, EEOC Appeal No. 07A30134 (May 11, 2004). Here, evidence in the record shows that Complainant requested a transfer to another organization. ROI at 310. As such, we find that the Agency’s move of Complainant was effective remedial action. 0120181923 8 To the extent that Complainant argues that the AJ erred when she did not consider W1’s testimony about the “severe and egregious discrimination,” we find that, even crediting W1’s testimony, the AJ properly found that S2 took prompt corrective action in response to Complainant’s allegation that she was harassed. As such, we find that substantial evidence supports the AJ’s finding that Complainant did not establish that she was subjected to a discriminatory hostile work environment from July 15, 2014, through November 17, 2014. Failure to Provide Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), (p). We find that there is substantial evidence in the record to support the AJ’s determination that Complainant had not proven that the Agency failed to accommodate her. Assuming that Complainant is a qualified individual with a disability, we find that the Agency provided a reasonable accommodation. On November 7, 2014, Complainant sent an email to TS requesting to telework as a reasonable accommodation because of the air conditioning. Complainant noted that, due to a medical condition, she has an “inability to deal with extreme hot and cold conditions.” The record contains additional emails showing that maintenance personnel were working on the temperature issues, and on November 20, 2014, Complainant sent an email stating, “happy to report there is heat in my office this morning.” Additionally, TS testified that she offered Complainant a heater, who responded that she did not want one. HT at 1413. We note that, while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance on Reasonable Accommodation at Question 9. Accordingly, we find that substantial evidence supports the AJ’s finding that Complainant did not establish that the Agency discriminated against her based on her disability when it did not grant her requested accommodation of telework. 0120181923 9 Aggrieved Employee We find that Complainant did not show that she was aggrieved when TS stated that Complainant was not allowed official time for union, EEO, or OSC meetings. The Commission has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The record contains an email from Complainant, dated October 1, 2014, stating that she spoke with TS, who explained that there was a misunderstanding, and that when Complainant needs to meet for EEO, union, or OSC matters, she should request the approximate amount of official time. Additionally, the record shows that TS approved Complainant’s requests to use official time for her EEO case on October 3, and 10, 2014. ROI at 118-19, 124, 126. As such, we find that Complainant has not shown that she was aggrieved when TS mistakenly informed her that she was not able to use official time for EEO, union, or OSC meetings. Furthermore we find that Complainant was never denied official time for any of these meetings and the mistake was promptly corrected. CONCLUSION We AFFIRM the Agency’s final order fully adopting the AJ’s decision. 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. 0120181923 10 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 January 22, 2020 Date