0120110888
07-22-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120110888
Agency No. DECA-00042-2010
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal1 from the Agency's October 25, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
At the time of events giving rise to this complaint, Complainant worked as a Meatcutting Worker, WG-5, at the Agency's New London Commissary in Groton, Connecticut. Complainant's First Level Supervisor was the Meatcutting Supervisor (S1 - male).
On November 30, 2009, Complainant contacted an EEO Counselor. On January 4, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when:
1. In June 2009, she received an annual performance rating from S1 that was lower than what she felt she earned; and
2. From July 2009 to December 2009, S1 subjected her to hostile work environment harassment. In support of her claim, Complainant cited the following examples:
a. S1 got upset with her if she did not agree with him;
b. When she and S1 were not on speaking terms, he became very negative and took his frustrations out on her coworkers;
c. Because S1 treated her like he owned her, her coworkers refused to talk to her;
d. S1 used her as his secretary and told her, "Don't worry about your coworkers, just do what I want you to do;"
e. S1 tried to make her workload more difficult because he could not have her as a friend;
f. S1 stalked her by accessing her personal email and by following her at work;
g. S1 badmouthed her to the Store Director (SD).
On January 8, 2010, the Agency accepted claim 2 for investigation but dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant did not contact an EEO Counselor within 45 days of receiving her annual performance rating.2
During the investigation, the EEO Investigator attempted to obtain sworn testimony from Complainant in support of her harassment claim. The record reflects that the EEO Investigator sent an affidavit to Complainant and/or her attorney on April 23, 2010, May 13, 2010, and June 2, 2010. Report of Investigation (ROI), at 65-66, 123. Complainant, however, did not provide an affidavit for the investigation. Id. at 169.
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 Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to hostile work environment harassment as alleged.
Hostile Work Environment Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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).
Upon review of the record, we find that Complainant failed to establish a claim of harassment. Specifically, we find that Complainant did not show, by a preponderance of the evidence, that S1 subjected her to unwelcome verbal or physical conduct based on her sex. As noted above, Complainant failed to provide any testimony in support of her complaint during the EEO investigation or a statement in support of her appeal. The record contains affidavit testimony from S1, SD, the General Manager (GM), and three of Complainant's coworkers. According to the testimony, Complainant and S1 used to be friends, but their friendship and working relationship deteriorated in 2009.
S1 denied harassing Complainant based on her sex. Specifically, S1 averred that Complainant began having conduct issues - time and attendance problems, idleness, and a belligerent attitude when given assignments. In addition, S1 averred that when he brought those issues to Complainant's attention, she would take it personally, become angry, and refuse to communicate with him. Further, S1 averred that he never followed Complainant at work. Finally, S1 averred that he helped Complainant remove a virus from her personal computer when she brought it to work, but never accessed her personal email.
Similarly, SD, GM, and Complainant's coworkers stated that they did not witness or have any reason to believe that S1 harassed Complainant based on her sex.
SD averred that Complainant's coworkers did not talk to Complainant when she and S1 were friends because they believed that Complainant would "run to [S1] and tattle." In addition, SD averred that Complainant became defiant towards S1 when, after a promotion from WG-4 to WG-5, S1 attempted to assign her duties in accordance with her new grade level. Further, SD averred that S1 often spoke to him about Complainant's attitude and lackadaisical work ethic. Finally, SD averred that he advised Complainant to contact the Naval Criminal Investigative Service (NCIS) after she complained to him about S1 accessing her email, but NCIS determined that nothing had happened.
GM and Complainant's coworkers averred that they did not witness S1 treating Complainant poorly, making her workload more difficult, or stalking her. Although some of Complainant's coworkers averred that they did not speak to Complainant often, they attributed that to their belief that S1 used Complainant to keep track of what they were doing.
After a review of the record in its entirety, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that harassment on the basis of sex occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
__7/22/14________________
Date
1 Complainant did not submit a statement or brief in support of her appeal.
2 The Commission has the discretion to focus only on the issues specifically raised on appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � IV.A (Nov. 9, 1999). On appeal, Complainant did not specifically challenge the Agency's dismissal of claim 1. Accordingly, we will not address the dismissal of claim 1 in this decision.
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0120110888
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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