0120121769
04-01-2014
Complainant, v. Inez Moore Tenenbaum, Chair, Consumer Product Safety Commission, Agency.
Complainant,
v.
Inez Moore Tenenbaum,
Chair,
Consumer Product Safety Commission,
Agency.
Appeal No. 0120121769
Hearing No. 531201100299X
Agency No. CPSCEEO11001
DECISION
On February 27, 2012, Complainant filed an appeal from the Agency's February 17, 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 an Accountant at the Agency's Division of Financial Services in Bethesda, Maryland.
On December 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. On November 15, 2010, she received a Highly Successful rating on her performance appraisal for the period October 1, 2009 to September 30, 2010.
2. On October 22, 2010, she received a letter of reprimand.
3. On a continuous basis Complainant was required to provide guidance to other employees.
4. On a continuous basis, management did not effectively communicate with her and delayed taking actions on her requests for information and assistance. Complainant also alleges that management is unusually critical of her.
5. On April 21, 2011, she was given a notice of proposed suspension.
6. Complainant was subjected to treatment that on May 2, 2011 forced her to retire from the Agency.
On June 16, 2011, Complainant filed a motion to amend her complaint to add the following claim:
7. Complainant was subjected to other incidents of alleged harassment with respect to the performance of job duties, having to help co-workers, and communication between management and staff.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, the record indicates that Complainant later filed a Motion for a Decision without a Hearing on June 20, 2011, requesting that the AJ find that the Agency subjected her to discrimination as alleged. The Agency filed a cross motion on August 19, 2011, requesting that the AJ issue a decision finding that Complainant was not subjected to discrimination on any alleged basis.
Over Complainant's objections, the AJ assigned to the case granted the Agency's cross motion and issued a decision by summary judgment in favor of the Agency on February 7, 2012.
In reaching this decision, the AJ found the following facts undisputed or if disputed, viewed in the light most favorable to the Complainant. Complainant began employment with the Agency in 1991 as an accountant with the Agency's Financial Services Division. Her duties include drafting reports on accounting system problems, advising division management, and assisting employees with the accounting system. On November 5, 2008, the record indicates that Complainant initiated contact with an EEO Counselor alleging that her second line supervisor and the Director of Complainant's division discriminated against her due to her age. According to the record, the parties resolved the matter through mediation. The record further indicates that for fiscal year 2009, Complainant's first-line supervisor rated Complainant's overall performance as outstanding, in every category including program support, understanding account transactions, analytical ability, and knowledge of general ledger and timeliness of report submission. In July 2010, Complainant's first-line supervisor retired and the Division Director (Director), to whom Complainant's prior informal complaint was directed, took over as Complainant's immediate supervisor.
In her supervisory authority, Director instructed Complainant to guide consultants from an independent contractor working with the Agency through reimbursement processing. Because Director was familiar with the system and because she was ultimately responsible for the division's work output, she also instructed the consultants on processing reimbursements. On occasion, Director's instructions to the consultants conflicted with the advice Complainant provided. According to the record, on one occasion, a consultant got upset with Complainant when she gave advice the consultant did not understand. Because Complainant did not want to respond to such complaints, she believed that Director should have taken sole responsibility for advising the consultants and as such, did not communicate further with the consultants.
Director also instructed Complainant to train a GS-9 financial management analyst employed in Complainant's division regarding the reimbursement process. Complainant alleged the analyst made abusive comments to her. As a result, on at least one occasion, Complainant told the analyst to ask Director for assistance and then told Director to give the analyst the required information.
On September 20, 2010, Director called Complainant into her office to discuss reimbursements for the financial year. Instead of entering Director's office, Complainant stood outside the door, did not respond to Director's questions and told her that if she wanted answers, she could read the email that Complainant sent her. The two began to argue after Director again asked and Complainant did not respond to specific questions. Ultimately, Complainant walked away from Director's doorway without providing the requested information. Complainant was issued a reprimand regarding this incident.
In fiscal year 2010, Director rated Complainant's overall performance as highly successful.
On November 22, 2010, another individual took over as Complainant's first line supervisor (Supervisor), while Director returned to being Complainant's second-line supervisor. Complainant's new supervisor had not previously worked for the Agency and was not involved in any prior incidents between Complainant and Director. The record indicates that on February 11, 2011, Supervisor came to Complainant's cubicle to discuss an upcoming meeting. Complainant immediately told her to leave because she was too loud and the cubicle was crowded. Supervisor then asked Complainant to come to her office. However, Complainant refused and stayed in her cubicle.
Again on February 16, 2011, Supervisor entered Complainant's cubicle several times to hand Complainant documents. Complainant told her to stay out of her cubicle and leave any papers in Complainant's inbox. On February 25, 2011, Supervisor instructed Complainant to attend a teleconference addressing errors made by Complainant's department, and to bring an accounting worksheet. When she came to the conference, the record indicates that Complainant did not bring the accounting worksheet, refused to take a copy offered to her and slept through the teleconference. On April 4, 2011, rather than participate in a teleconference with Supervisor, Director and an independent consultant working with the Agency, she read a newspaper. Supervisor interrupted the conference call twice to tell Complainant to put the newspaper down. Complainant refused and challenged Supervisor to take action against her. On two other occasions in April 2011, Complainant refused to discuss a budget report and left her cubicle when Supervisor came to discuss a matter with her. Because Complainant failed to cooperate regarding the budget report, the Agency was unable to report its March 2011 budget accurately. As a result of Complainant's conduct, she was issued a notice of proposed suspension. Rather than reply to the Agency's proposed notice, Complainant filed for retirement.
Based on these facts, that AJ determined that Complainant failed to prove, by a preponderance of the evidence, that the events at issue resulted from unlawful retaliatory animus.
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. The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no identified disputes of material fact.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711,715-716 (1983).
Assuming arguendo that Complainant established a prima facie case of discrimination in reprisal for her prior EEO activity, we concur with the AJ and find that the responsible management officials articulated legitimate, nondiscriminatory reasons for its actions as detailed above. Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant to prove that the proffered reason was a pretext for discrimination. We find that Complainant failed to establish that the Agency's proffered reasons for its conduct were a pretext for discrimination on any alleged basis.
To the extent that Complainant alleges that the Agency's conduct constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (DC. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
The evidence of record simply does not support Complainant's claim that the events at issue were motivated in any way by retaliatory animus for her prior protected activity. Moreover, the bulk of the events were not sufficiently severe or pervasive to establish a hostile work environment. A discriminatory constructive discharge occurs when the employer, motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person would feel compelled to resign. Doe v. Social Security Administration, EEOC Appeal No. 01A114791 (February 21, 2003). The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990). Upon review, we find that Complainant has not shown that the Agency engaged in discrimination that became so intolerable that she had no choice but to resign. Therefore, Complainant failed to establish that her resignation/retirement amounted to a constructive discharge based on discriminatory animus.
CONCLUSION
After a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Agency's final decision to fully implement the AJ's finding of no discrimination is AFFIRMED.
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 tends 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 1, 2014
__________________
Date
2
0120121769
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121769