0120122092
04-28-2015
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122092
Hearing No. 510-2010-00196X
Agency No. BOP-2009-0607
DECISION
On April 3, 2012, Complainant filed an appeal from the Agency's March 5, 2012, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Officer at the Agency's Federal Detention Center in Miami, Florida.
In April 2009, Complainant contacted the EEO Counselor alleging she had been subjected to unlawful retaliation. On August 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From January 8, 2009, to August 11, 2009, she was subjected to harassment in the form of delays in monetary compensation for overtime that she had worked, and a delay in receiving a Special Act award (May 2009). Additionally, it is alleged that she was denied entry and equipment access to her duty assignment post; her shift assignment was changed (June 21, 2009); denied training on June 16, 2009; and she had a door slammed in her face while trying to report to her assigned post, thus creating a hostile work environment; and
2. On April 1, 2009, she received a lowered annual Employee Performance Appraisal.
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 November 9, 2011, and issued a decision on January 6, 2012.
In the AJ's decision, as to Complainant's claim of unlawful retaliation, the AJ held that Complainant had engaged in prior EEO activity in 2007. That complaint was settled and resulted in Complainant being transferred into her position in 2009. As such, the AJ determined that Complainant's supervisors were aware of Complainant's prior EEO activity. However, the AJ determined that when Complainant alleged discrimination in April 2009, it had been some 18 months since her prior complaint was settled resulting in the assignment. Therefore, the AJ concluded that Complainant did not establish a temporal proximity between her prior EEO activity and the alleged retaliation. Assuming for sake of argument that Complainant established her prima facie case of retaliation, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to rebut. In addition, as to Complainant's claim of harassment regarding her employees, the AJ found that the events did not remotely resembled harassment. The AJ noted that the evidence showed that Complainant and the coworkers did not get along and they just avoided contact with Complainant in order to avoid further conflict. The AJ found nothing unlawful about the coworkers trying to avoid encounters with Complainant. The AJ also held that Complainant failed to establish that the Agency's reasons for its schedule changes, denial of training opportunity and overtime issues were unjustified. Finally, as to Complainant's claim regarding her "lowered" evaluation, the AJ held that the Agency provided reasons for the rating which Complainant failed to rebut.
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.
Complainant appealed. On appeal, Complainant asserted that it was common knowledge that she had engaged in prior EEO activity. She also argued that she testified that due to her prior EEO activity, she was referred to as a "troublemaker" and this occurred consistently from the time she settled her prior EEO case until the problems started in 2009. She also indicated that one of her supervisors referred to her as a "troublemaker" based on her prior EEO activity. As such, Complainant argued that she established a nexus between her prior protected activity and the events alleged herein. Further, Complainant claimed that she established pretext. She provided a signed time sheet but was not paid overtime in a timely manner. As to the evaluation, she was told by her supervisor that she had preformed above and beyond on several occasions. However, these were not included in her evaluation. As to the changing of her schedule, Complainant noted that the Agency failed to provide any reason for not giving her 24 hour notice. Finally, as to the training, the Agency argued that it could not provide the training due to budgetary issues. Complainant noted that there were no budgetary issues because she would not incur any overtime during the training. Therefore, Complainant argued that the AJ's decision should be reversed and that the Commission should find that she was subjected to unlawful retaliation.
Upon receipt of this appeal, we sent the Agency a letter, dated April 23, 2012, asking it to provide the EEOC with the complete record pertaining to the complaint at hand within 30 calendar days of notification of this appeal. See 29 C.F.R. � 1614.403. However, the Agency did not comply with this request.
Based on the Agency's failure to respond to the request for the complaint file and hearing records, on February 27, 2015, the Commission issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete file, including the hearing record, or provide good cause why it could not, through evidence and argument, within 30 calendar days. The Notice to Show Cause specifically stated that the matter was before an AJ and a hearing was held on November 9, 2011. In addition, the Notice to Show Cause listed the documents the Commission needed including all motions, pleadings, correspondence, and transcript of the hearing.
On March 10, 2015, the Agency sent Complainant's file to the Commission. The Agency stated that it reviewed its records and asserted that it did not receive the Commission's initial request for the record. The Agency requested that the Commission affirm its decision adopting the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
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. (November 9, 1999).
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant alleged that she was subjected to disparate treatment when the Agency delayed her overtime and holiday pay. The AJ noted that the issue of pay could be related to clerical error as well as Complainant for failure to sign her time sheet. The Agency indicated that Complainant was denied a training opportunity due to cost issues. As for the recruiting event, the Agency noted that Complainant lacked the attendance requirement. The Agency provided support for Complainant's performance appraisal. Upon review of the record, the AJ properly determined that the Agency provided legitimate, nondiscriminatory reasons for the actions. Further, the record supports the AJ determination that Complainant failed to show that the Agency's reasons were pretext for unlawful retaliation. The AJ noted that Complainant provided arguments but failed to support her assertions with evidence. Therefore, we find that the AJ correctly concluded that Complainant failed to establish that she was subjected to unlawful retaliation.
Harassment
It is well-settled that harassment based on an individual's prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record and as noted above, we find that the AJ correctly held that she failed to show that the alleged actions occurred because of her prior EEO activity. Further, Complainant failed to establish that events such as the co-workers avoiding contact with her constituted a hostile work environment. Therefore, we find that the record supported the AJ's conclusion that Complainant did not show that she was subjected to retaliatory harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
April 28, 2015
__________________
Date
2
0120122092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122092