0120140375
09-09-2016
Daisy B.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Daisy B.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140375
Hearing No. 451-2012-00094X
Agency No. ARFTSAM10OCT04735
DECISION
Complainant filed an appeal from the Agency's November 26, 2013, final decision 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.2 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to hostile work environment harassment and disparate treatment on the bases of sex (female) and reprisal for prior protected EEO activity (serving as a witness in EEO complaints in November 2008, in January 2010, and on September 29, 2010) in connection with seven incidents from July 2010 to October 2010 and an annual performance evaluation for the 2010 rating period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Case Manager, GS-0610-11, at the Agency's Brooke Army Medical Center, Warrior Transition Battalion, in Fort Sam Houston, Texas. Complainant's primary responsibility was to facilitate the care and case management of service members (SMs) who were wounded, ill, or injured. Complainant's chain of command included the Senior Nurse Case Manager (S1 - male), the Chief of Case Management (S2 - female), and the Battalion Commander (S3 - male).
S1 supervised Complainant, seven other nurse case managers, and two military personnel.
All of S1's subordinates were female.
Complainant filed an EEO complaint alleging that the Agency discriminated against her when:3
1. From July 2010 to October 2010, S1 subjected her to hostile work environment harassment on the bases of sex (female) and reprisal for prior protected EEO activity (serving as a witness in EEO complaints in November 2008, in January 2010 and on September 29, 2010) that included the following incidents:
a. In a July 8, 2010, email, she informed him that the acuity of her SMs had increased,4 but he refused to provide her with relief from her high-acuity case workload.
b. On a July 29, 2010, nomination form, he limited her to a one-day time off award, but other nurse case managers he did not supervise received three-day or four-day time off awards.
c. On August 6, 2010, he called her at home when she was on sick leave and erroneously told her that she needed to submit medical documentation for missing three days of work. The Agency's sick leave policy for General Schedule (GS) employees only required medical documentation if the absence exceeded three days.
d. On August 12, 2010, he called her into his office and told her in a threatening tone of voice, "Don't you ever question me in front of [the Commander] again. Do I make myself clear? Do I make myself clear?"
e. In an August 16, 2010, email, he asked her to provide him and another supervisor (AS) with a copy of a report she previously gave to an employee about the transfer of a SM. She felt that he was accusing her of not communicating and not following instructions, and was trying to blame her for his own lack of communication with AS about the transfer of the SM.
f. On September 29, 2010, he yelled at her for not following the medical summary format for reports. Although she had not followed the format, she felt that the reports contained the necessary information.
g. In an October 5, 2010, email, he assigned her and one of the military personnel to each cover 10 SMs for a nurse case manager who was on leave the following week. In an email response, she informed him that she declined to accept the assignment because she had 20 SMs and felt that managing 30 SMs would not be appropriate for health and safety reasons. After receiving her email response, he came into her office, told her that if he gave her an assignment he expected her to take it, raised his voice at her, put his hand about seven inches from her face and told her she did not have to go see the union when she tried to walk away, followed her when she walked away from him, and yelled that he would write her up for insubordination if she walked off the unit.
2. On December 3, 2010, S1 subjected her to disparate treatment on the basis of reprisal for prior protected EEO activity (serving as a witness in EEO complaints in November 2008, in January 2010, and on September 29, 2010) when he gave her a lower overall performance rating for the 2010 rating period ("3" Successful) than he did for the 2009 rating period ("2" Successful).5
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to hostile work environment harassment or disparate treatment as alleged. We will address Complainant's arguments on appeal below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Hostile Work Environment Harassment - Claim 1
On appeal, Complainant argues, among other things, that S1's conduct was based on her sex and her prior protected EEO activity. Regarding the basis of sex, Complainant did not make any specific assertions. Regarding the basis of reprisal, Complainant asserts that S1 knew she had served as a witness in prior EEO complaints in November 2008 (in which she gave testimony that conflicted with S1's testimony), in January 2010, and on September 29, 2010. In addition, Complainant asserts that she complained about S1's adverse treatment of her, her complaints constituted protected opposition activity, and S1's adverse treatment of her escalated in response to her protected opposition activity. Complainant cites her October 2, 2010, memorandum to S3 complaining about S1's treatment.
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 did not establish a claim of harassment because the evidence in the record is insufficient to support a finding that S1's conduct was based on Complainant's sex or prior protected EEO activity.
Specifically, we note that S1 provided nondiscriminatory explanations for his conduct. FFC Tr., at 90-124. Regarding incident (a), S1 averred that he had a conversation with Complainant about her workload, discussed her concerns with S2, and was working on reducing her number of high-acuity cases. Regarding incident (b), S1 averred that he gave Complainant an award for good performance and did not nominate any of his subordinates for a time off award of more than one day. Regarding incident (c), S1 averred that he was fairly new to supervising GS employees because the nurse case managers only became GS employees in March 2009, he thought GS employees were required to provide medical documentation for a three-day absence, and he later learned from Human Resources that the requirement was for absences exceeding three days. Regarding incident (d), S1 averred that it did not occur. Regarding incident (e), S1 averred that AS had indicated she wanted better communication from the nurse case managers, on several occasions Complainant had not sent AS the reports she had asked for before a meeting, and AS had asked him to speak to Complainant about sending those reports to her. Regarding incident (f), S1 averred that he may have raised his voice when he spoke to Complainant, but he did not remember yelling. Regarding incident (g), S1 averred that he went to Complainant's office to discuss the issue after receiving her email, told her she did not need a union representative because it was not a disciplinary meeting, put his hand up and said "wait" when she interrupted him, and told her when she was leaving that it looked like she was being insubordinate by leaving the unit without permission.
Moreover, despite Complainant's arguments on appeal that S1's conduct was based upon her prior protected EEO activity, we find the evidence does not show that it is more likely than not that S1 had a retaliatory motive.
First, we find it unlikely that S1 held any retaliatory animus against Complainant based on her November 2008 protected activity because S1 had an opportunity to engage in retaliatory acts immediately as her direct supervisor, but instead nominated her for a $500 on-the-spot cash award in July 2009 and gave her an overall performance rating of "2" Successful in November 2009. ROI, at 84-85, 168-69.
Second, we find it unlikely that S1 held any retaliatory animus against Complainant based on her January 2010 protected activity because S1 also had the opportunity to engage in retaliatory acts immediately as her direct supervisor, but instead supported S3's nomination of Complainant for the CARES award in June 2010. Id. at 164-65. In addition, Complainant did not allege any retaliatory acts by S1 prior to July 2010.
Third, we find it unlikely that that incident (f), which occurred the same day as Complainant's protected activity on September 29, 2010, was retaliatory. In a September 29, 2010, email, Complainant provided a witness statement to an EEO Specialist about an incident involving S2 and an employee. Id. at 47-48. The record, however, contains no evidence that S1 was aware of the witness statement at the time of incident (f). Specifically, S1 was not included on the emails between Complainant and the EEO Specialist. In addition, S1 averred that the EEO Specialist did not notify him about Complainant's witness statement. FFC Tr., at 121-22.
Fourth, we disagree with Complainant's assertion that her complaints about S1's adverse treatment of her constituted protected opposition activity and that, therefore, S1's subsequent adverse treatment of her was retaliatory. In Complainant's October 2, 2010, memorandum to S3, she described the "[a]buse of [p]ower and unfair treatment" by S1 and stated that she felt the "need to bring forward [her] concerns about the tyrannical manner in which the case management department is presently managed and the lack of effective leadership that have resulted in serious negative morale among most." ROI, at 80. We find, however, that this was not protected opposition activity because the memorandum would not reasonably have been interpreted as opposition to employment discrimination. Complainant complained about unfair treatment by S1, but did not explicitly or implicitly communicate that a protected basis was the reason for any unfair treatment. See generally EEOC Enforcement Guidance on Retaliation and Related Issues, EEO Notice No. 915.004, at II.A.2 (Aug. 25, 2016).
Based on the above, we conclude that Complainant did not establish her claim of hostile work environment harassment on the bases of sex or reprisal for prior protected EEO activity.
Disparate Treatment - Claim 2
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for giving her a lower overall performance rating in 2010 than in 2009. Specifically, the record reflects the following: of the 12 performance objectives in 2009, S1 gave Complainant a rating of "Excellence" on three of them and a rating of "Success" on the remaining nine; of the 11 performance objectives in 2010, S1 gave Complainant a rating of "Excellence" on two of them and a rating of "Success" on the remaining nine; if an employee was rated "Excellence" in 25 percent to 75 percent of the performance objectives and "Success" in the remaining performance objectives, then the employee received an overall performance rating of "2" Successful; and if an employee was rated "Excellence" in 1 percent to 24 percent of the performance objectives and "Success" in the remaining performance objectives, then the employee received an overall performance rating of "3" Successful. ROI, at 82-89, 195-96.
In addition, the record reflects that S1 gave Complainant a lower rating ("Success" instead of "Excellence") in 2010 on two performance objectives: (i) "Will adhere to a dress code IAW BAMC and Departmental SOP;" and (ii) "Complete 95% of all CCP's within 72 hours of in processing a new WT."6 Id. at 86, 88. Regarding the lower rating on performance objective (i), S1 averred that the Agency had a business casual dress code, Complainant's attire had "slipped" from business casual to casual, and, although Complainant did not obviously violate any particular rule such as no open-toed shoes or no tank tops, it was his opinion that Complainant could have dressed more professionally. FFC Tr., at 120. Regarding the lower rating on performance objective (ii), S1 averred that Complainant exceeded the standard in 2009 by completing the CCP's in less than 72 hours but only met the standard in 2010. Id. at 121.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for retaliation. On appeal, Complainant argues that S1's reasons were unworthy of belief. Specifically, Complainant asserts that S1 gave her a "glowing" recommendation when he nominated her for a one-day time off award on July 29, 2010, only a few months before the close of the rating period. In addition, Complainant asserts that S1's "unprofessional dress" explanation for reducing her rating was "specious" in nature. Moreover, Complainant asserts that S1 had a pattern of retaining an employee's overall performance rating from 2009 to 2010; of the six other employees he rated in both 2009 and 2010, five of them retained the same overall performance rating. Finally, Complainant asserts that she deserved at least the same rating in 2010 as she had received in 2009 because she had a higher-acuity case workload compared to her coworkers.
Upon review of the record, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for retaliation. Specifically, we find that S1's praise of Complainant's performance in his July 29, 2010, recommendation was not inconsistent with his determination that she performed successfully overall and excellently on several performance objectives. In addition, we find that Complainant did not show that S1's "unprofessional dress" explanation was false. Although it may seem harsh that Complainant received a lower overall performance rating in part because of a performance objective related to the dress code, we note that the Agency's performance evaluation policy weights an employee's performance objectives equally when calculating the employee's overall performance rating. Moreover, we find that Complainant did not show that the overall performance ratings S1 gave to his other subordinates were based on their lack of prior protected EEO activity rather than their actual performance. Finally, even if Complainant had a higher-acuity case workload compared to her coworkers, we note that the acuity-level did not appear to be a part of the performance objectives.
Based on the above, we conclude that Complainant did not establish her claim of disparate treatment on the basis of reprisal for prior protected EEO activity.
CONCLUSION
Complainant did not establish that the Agency subjected her to hostile work environment harassment or disparate treatment on the bases of sex or reprisal for prior protected EEO activity in connection with seven incidents from July 2010 to October 2010 and an annual performance evaluation for the 2010 rating period. Therefore, based on a thorough review of the record, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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. 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
__9/9/16________________
Date
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.
2 We note that Complainant's appeal was premature at the time of the filing. However, because the Agency issued a final decision while Complainant's appeal was pending, we find that the appeal is currently ripe for review.
3 For purposes of clarity, we have rephrased and renumbered the allegations based on Complainant's formal complaint and fact-finding conference testimony. Report of Investigation (ROI), at 2-3; Fact-Finding Conference Transcript (FFC Tr.), at 9-13, 25-57.
4 According to Complainant, high-acuity cases were more difficult and more time-consuming.
5 The overall performance rating scale was "1" Successful, "2" Successful, "3" Successful, "4" Fair, and "5" Unsuccessful."
6 The record reflects that S1 gave Complainant a higher rating ("Excellence" instead of "Success") in 2010 on one performance objective: "Complete 20 CEU's this year."
ROI, at 86, 88.
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