0120170378
07-27-2018
Diedre A.,1 Complainant, v. Linda McMahon, Administrator, Small Business Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Diedre A.,1
Complainant,
v.
Linda McMahon,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120170378
Agency No. 07-14-034
DECISION
On October 31, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 29, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency discriminated against Complainant and subjected her to a hostile work environment on the bases of race, sex, disability, and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant, GS-303-07, at the Agency's Office of Disaster Assistance, Processing and Disbursement Center (PDC), in Fort Worth, Texas. Complainant was a term employee whose four-year term expired on July 3, 2014. Complainant contacted an EEO Counselor on July 2, 2014. In a formal complaint filed on July 18, 2014, Complainant alleged that the Agency discriminated against her in reprisal for prior protected EEO activity when it did not select her for a vacant position and subjected her to harassment.
The Agency dismissed the complaint for failure to state a claim on the grounds that Complainant had not shown that she had engaged in prior protected EEO activity. On appeal, the Commission reversed the dismissal and remanded the complaint to the Agency for processing. The Commission found that whether Complainant had engaged in prior protected EEO activity went to the merits of her complaint and was irrelevant to whether she had stated a claim. In addition, the Commission noted that Complainant had raised a number of allegations in the narrative accompanying the complaint and "that bases may be added to a complaint without changing the identity of the claim." Diedre A. v. Small Bus. Admin., EEOC Appeal No. 0120150291 (Oct. 20, 2015).
By letter dated November 5, 2015, the Agency accepted the complaint for investigation. The Agency defined the accepted allegations as whether the Agency discriminated against Complainant and subjected her to harassment on the bases of race (African American), sex (female), disability, and reprisal when:
(l) from April 2012 through July 3, 2014, Complainant was subjected to various incidents of unlawful harassment such as:
(a) being referred to as "girl" by the Human Resources Officer;
(b) being accused of divulging layoff information to co-workers;
(c) threatened with termination on several occasions;
(d) work being sabotaged which affected production and her performance ratings;
(e) no longer invited to meetings and denied information about training and updates on changes within the department;
(f) no longer received the daily production report; and
(g) constantly watched while visiting the vending machine, water fountain, and ladies room; and
(2) on June 26, 2014. Complainant learned that she was the only existing employee deemed as core staff that applied, qualified, and was referred for the Program Support Assistant, GS-303-06/07, announced under Vacancy Announcement Number DEU-14-042-0PDC-1090378 but was not selected which subsequently led to her being separated from federal government service effective July 3, 2014.
Complainant alleged that, on April 10, 2012, a Human Resources (HR) Officer referred to her as "girl" when she went to the HR Department to fill out paperwork after returning to work from a layoff. According to Complainant, the HR Officer pulled her aside and said that she had heard that Complainant had told people when they would be laid off and that Complainant's husband, who worked in the IT Department, had given her the layoff information. Complainant asserted that the HR Officer stated, "Hey, I need to talk to this girl," "Girl, you didn't tell me that you had a relative working there," and "I don't want any trouble out of you, girl, and I'm going to be watching you." She also asserted that the HR Officer said that Complainant's husband could be fired for disclosing the information. Complainant, who denied disclosing information, told the HR Officer that neither she nor her husband had access to layoff information. She alleged that the HR Officer treated her that way because of her race.
Complainant also alleged that her first-level supervisor (S1)2 threatened her with termination when, in February 2013, S1 told Complainant and two co-workers that she was tired of them and that she could have Complainant removed. She asserted that S1 reassigned White employees to other departments to lengthen their employment but retained African American employees only if they were part of the core staff. In addition, Complainant claimed that S1 and two of Complainant's co-workers (CW1 and CW2) sabotaged her work from November 2012 to July 3, 2014, by withholding work to keep her performance low and giving her work with old dates stamped on it. She further claimed that S1 tried to keep her production low and did not invite her to meetings, that people would change the way that work was done without telling her, that she did not receive production reports from March to July 2014, and that she was denied training. According to Complainant, she used to receive the production reports because she was "the business backup lead," but S1 stopped providing the reports to her to prevent her from seeing other employees' production figures. Complainant also claimed that S1 watched her whenever she left her desk to see if she was going to the restroom, the vending machine, or elsewhere in the building.
Complainant stated that she has a diagnosed illness, Samter's Triad, but does not have a disability. She also stated that her managers were aware of her condition because she needed to take extra breaks and that she asked them to check the building because she was experiencing respiratory problems.
According to Complainant, she engaged in prior EEO activity in August 2013 when she challenged a layoff letter that she received. Complainant stated the Supervisory Customer Service Representative, who was her second-level supervisor (S2), told her that the Agency was laying her off because of her production. After Complainant pointed out that she had missed work because of illness, Agency officials calculated what her production would have been if she had not taken leave. The Agency subsequently rescinded the letter.
On June 3, 2014, the Field Operations Chief (S3), Complainant's third-level supervisor, issued Complainant a Letter of Warning for conduct unbecoming a federal employee. He stated in the letter that, on May 20, 2014, Complainant posted on her Facebook account a picture of a co-worker who appeared to be sleeping and included a caption that said, "Your tax dollars hard at work. Govt employees sleeping on the job." According to the letter, Complainant stated that she took the picture while on break, that she posted it as a joke, and that she subsequently removed the posting. S3 stated that Complainant's behavior was inappropriate and unprofessional and that further misconduct could result in formal discipline, including removal.
The record contains three Certificates of Eligibles for Program Support Assistant positions under Vacancy Announcement Number DEU-14-042-OPDC-1090378. Complainant is on all three certificates, which are from May and June 2014. The Selection Certificate contains more than one hundred names. Complainant asserted that all of the other employees with whom she worked were selected for positions under the Vacancy Announcement, that there were "hundreds of openings," and that she was the only employee who did not receive an offer. She alleged that the Agency discriminated against her when it did not select her for any of the positions.
By letter dated June 26, 2014, the HR Officer informed Complainant that her term appointment would end on July 3, 2014. She stated that, although the appointment could not be renewed or extended, Complainant could apply for other positions at the Agency.
The HR Officer denied calling Complainant "girl." She stated that S2 and S3 told her that, during a previous layoff, Complainant told co-workers that she had access to the list of people scheduled for layoff. She asked Complainant about it because Complainant's husband worked in the IT Department, and Human Resources personnel needed to know if someone was looking at their confidential information. According to the HR Officer, Complainant denied telling others that she had access to layoff information.
S2 stated that the Agency expands and reduces staff based on the Agency's disaster activity, that employees do not have permanent jobs, and that the possibility of termination is mentioned to everyone in staff meetings. She did not think that anyone had sabotaged Complainant's work. She stated that the Agency included Complainant in the cross-training provided to all employees and that daily production reports went to managers, not line staff. In addition, S2 stated that the Agency did not select Complainant for a position under Vacancy Announcement Number DEU-14-042-OPDC-1090378 because of the picture that Complainant took and posted on Facebook. According to S2, managers were going to select Complainant for the position but did not do so because of the picture incident.
Like S2, S3 stated that the Agency did not select Complainant because of the picture incident. He stated that he had not recommended Complainant during the first hiring round because the department had a problem with gossiping and that he had talked to her about how detrimental gossiping was to the department. He also stated that he and S2 recommended the selectee to the PDC Deputy Director and that the Deputy Director made the final decision. S3 confirmed that Complainant challenged her layoff in August 2013, that he re-calculated her production in light of her absences, and that he rescinded the layoff letter. According to S3, Complainant did not allege that the layoff was because of her race, sex, disability, or protected EEO activity. S3 stated that he set up a meeting between Complainant and S1 to discuss comments that S1 made in February 2013. He believed that S1 had said that either she would go or Complainant could go. Complainant and S1 "talked it out," and S3 counselled S1 about professionalism after the meeting.
The PDC Deputy Director stated that he managed the selection process for Program Support Assistant positions. Managers from five departments gave him the list of candidates whom they wanted for their teams, and he signed off on the selections. According to the PDC Deputy Director, S3 was the final decision-maker for the selection in S3's department.
CW1 and CW2 denied trying to sabotage Complainant's work by giving her work with old dates on it or withholding assignments.
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. 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).
In its final decision, the Agency found that Complainant had not established that she engaged in prior EEO activity. The Agency also found that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not show that the articulated reasons were a pretext for discrimination.3 The Agency concluded that Complainant did not show that the Agency discriminated against her or subjected her to a hostile work environment.
CONTENTIONS ON APPEAL
The parties raise no arguments on appeal.
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, at Chapter 9, � VI.A. (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
Complainant has alleged that the Agency subjected her to disparate treatment and harassment on the bases of race, sex, disability, and reprisal for prior protected EEO activity.
To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 Construction 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, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, the HR Officer stated that she asked Complainant whether she had told co-workers that she had layoff information because Human Resources personnel needed to know if someone was looking at confidential information. S2 stated that the daily production reports went to managers, not line staff, and that the Agency did not select Complainant for the Program Support Assistant position in 2014 because of the picture that Complainant took and posted on Facebook. S3 also stated that the Agency did not select Complainant because of the picture.
Complainant has not proven that the articulated reasons are a pretext for discrimination. She has not shown that the Agency's explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency's actions. For example, Complainant has not disputed that she took and posted the picture of a co-worker. Similarly, although Complainant denied disclosing layoff information, she has not refuted the HR Officer's explanation that the Officer asked her about the matter because Human Resources personnel needed to know if someone had accessed confidential information. Further, even if the incidents raised in Claim 1 occurred as Complainant described them, the evidence of record does not establish that the incidents occurred for discriminatory reasons. Complainant has presented no persuasive evidence of unlawful motivation. Her bare allegations, without more, are insufficient to establish pretext.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, sex, disability, or protected EEO activity. Therefore, a finding of discriminatory harassment is precluded by our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected her to discrimination or a hostile work environment based on race, color, sex, disability, or protected EEO activity.
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 and its finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_7/27/18_________________
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 The EEO Investigator did not interview S1 during the investigation because she had retired from the Agency and was not available for an interview.
3 The Agency did not discuss Claims 1(a), (b), (c), (e), and (g) because Complainant did not bring them to the attention of an EEO Counselor within 45 days of the alleged incidents. Those incidents, however, form part of Complainant's claim of harassment. "Because the incidents that make up a hostile work environment claim 'collectively constitute one unlawful employment practice,' the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period." EEOC Compliance Manual Section 2, "Threshold Issues, at 2-IV.C.1.b. (revised Aug. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The Agency correctly included these claims in its definition of the accepted allegations, and the EEO Investigator properly investigated the claims.
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