Complainant,v.Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Aug 15, 2013

0120113479 (E.E.O.C. Aug. 15, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120113479

Hearing No. 570-2010-00337X

Agency No. DOT-2009-22795-FAA-01

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 3, 2011 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Secretary at the
Agency’s Potomac Consolidated Terminal Radar Approach Control facility in Warrenton,
Virginia. Complainant entered duty with the Agency in April 2008 and performed general
office duties including filing and answering telephones. Complainant was subsequently
assigned time and attendance backup duties and was trained by the employee primarily
responsible for the time and attendance duties (CW1) around January 2009. In addition,
Complainant received additional training on other related duties from other co-workers.

Over time, CW1 became frustrated that Complainant was not learning the time and attendance
duties. Complainant’s first-level supervisor (S1) excused Complainant from her other duties to
allow her to focus on learning the time and attendance duties. CW1 announced that she would
be leaving the Agency and Complainant was expected to become primarily responsible for time
and attendance duties. Complainant claimed that CW1 made belligerent and intimidating
remarks to her during training and withheld training information. Complainant claimed that
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CW1 would yell at her “You just don’t get it!” Further, Complainant alleged that CW1 gave
her outdated lesson plans and berated her for not finishing the lessons in a short period of time.
Complainant believed that she should have been given training by an official trainer or sent to
a formal training class. On June 9, 2009, Complainant left a voicemail message for her
second-level supervisor (S2) claiming that CW1’s demeaning and nasty attitude caused her
stress and anxiety and that she would not be in to work on that day. Complainant has not
returned to work since leaving the message.

On July 30, 2009, Complainant filed a formal complaint alleging that the Agency subjected her
to a hostile work environment on the bases of race (Caucasian), sex (female), disability, and
age (54) as evidenced by multiple incidents including, inter alia, her trainer and supervisor
made belligerent and intimidating remarks and withheld training information.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on May 12,
2011.

In the decision, the AJ initially determined that the conduct alleged was not sufficiently severe
or pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the alleged conduct was based on Complainant’s protected classes. Specifically,
Complainant alleged that management expected her to carry out tasks for which she had not
been trained and which did not fall within the scope of her job description. The AJ found that
the record showed that Complainant was given more training hours and materials than any
other employee in her position and her job description unquestionably included the various
tasks in question. Further, the AJ determined that the record established that Complainant
could not or would not learn many of the tasks assigned to her. All of Complainant’s trainers
reported that they had to spend more time with her than with any other individual they had
trained and that Complainant still was not able to independently perform various aspects of her
job.

In addition, to the extent that CW1 allegedly made comments such as “You just don’t get it,”
the AJ determined that theses remarks were insufficient to establish discrimination or a hostile
work environment. The AJ thus concluded that Complainant had not established that she was
subjected to discrimination or a hostile work environment as alleged. Finally, the AJ noted
that, to the extent Complainant claimed that she was denied reasonable accommodation, the
only medical documentation in the record was dated after Complainant stopped reporting to
work. There was no evidence that Complainant requested accommodation before she stopped
reporting to work. As a result, the AJ found that Complainant had not been denied reasonable
accommodation. The Agency subsequently issued a final order adopting the AJ’s decision.
Complainant filed the instant appeal without submitting any arguments or contentions in
support thereof.

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ANALYSIS AND FINDINGS

The AJ's Issuance of Summary Judgment

The Commission's regulations allow an AJ to grant summary judgment 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.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
her favor, a reasonable fact finder could not find in Complainant's favor, as explained below.

Hostile Work Environment

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 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 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
Systems, 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).

Here, Complainant alleged that management and CW1 subjected her to discriminatory
harassment. Specifically, Complainant alleged that CW1 made belligerent and intimidating
remarks to her and withheld training information. For example, Complainant claimed that
CW1 berated her for not finishing lessons in a short period of time and yelled at her “You just
don’t get it!” Additionally, Complainant alleged that she should not have been trained by
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CW1; rather, she should have been sent for formal training. Finally, Complainant alleged that
management did nothing to correct CW1’s behavior. Construing the evidence in the light most
favorable to Complainant, the Commission concurs with the AJ that Complainant has not
established that she was subjected to a discriminatory hostile work environment.

CW1 denied withholding training information or making any belligerent comments. CW1
affirmed that Complainant appeared to have no desire to learn the time and attendance duties
and often went to other co-workers for help. ROI, at 120. CW1 added that she developed a
manual for Complainant with step-by-step instructions and another co-worker currently uses
that manual to do payroll. Id. CW1 described the difficulty she encountered in training
Complainant and asked S1 to take away Complainant’s other duties so that she could focus on
learning the time and attendance duties. Id. at 122. CW1 noted that S1 agreed to excuse
Complainant from the other duties, but Complainant did not improve. Id. Other co-workers
who trained Complainant stated that she was difficult, confrontational, and struggled to grasp
concepts. Id. at 135, 143.

S1 affirmed that Complainant was given web-based training, hands-on training, and self-guided
training on the time and attendance duties. ROI, at 101. S1 asserted that the feedback he
received concerning Complainant’s training was that she progressed at times, but regressed
when left on her own. Id. S1 added that there was no formal training for time and attendance
duties; rather, the Agency conducted on-the-job training. Id. at 102. Finally, S1 noted that
management conducted an investigation into Complainant’s claims regarding CW1’s conduct
and found no evidence of inappropriate behavior. Id. at 100. Construing the evidence in the
light most favorable to Complainant, the Commission finds that she has not shown that any of
the alleged actions were based on discriminatory animus.

Additionally, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency's reasons for its actions
were a pretext for discrimination. As a result, the Commission finds no basis to disturb the
AJ's summary judgment decision finding that Complainant was not subjected to discrimination
or a hostile work environment as alleged. Finally, the Commission concurs with the AJ’s
finding that Complainant failed to show that she was denied reasonable accommodation. There
is no evidence that Complainant requested an accommodation prior to when she stopped
reporting to work. The Agency is only required to provide a reasonable accommodation to a
known limitation. Accordingly, the Commission does not find that the Agency's purported
failure to accommodate Complainant was a violation of the Rehabilitation Act.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Administrative Judge’s grant of summary judgment in
favor of the Agency was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.
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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
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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

August 15, 2013
Date