Dionne W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionJun 14, 20180120171130 (E.E.O.C. Jun. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dionne W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120171130 Hearing No. 560-2016-00185X Agency No. ARRILEY15JUL02726 DECISION On January 20, 2017, 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 December 14, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-11, at the Agency’s Supply and Services Division, Logistics Readiness Center (LRC) located in Fort Riley, Kansas. On August 24, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment, based on sex (female) and reprisal (prior protected EEO activity)2 when: 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 Complainant withdrew the additional bases of race, religion, and disability prior to this appeal. 0120171130 2 (1) on July 16, 2015, a co-worker (C1) asked: “Have you been hovering on your broom lately?” and told her that, because she was part of the team, it was “okay” that he called her a “witch” previously; (2) on June 22, 2015, C1 stopped her at his office entrance to tell her, he and several other employees were in a group, he called her a “witch,” to which the group laughed. C1 asked her to guess who laughed the loudest and informed her it was another co-worker (C2); (3) on or about June 8, 2015, Complainant’s first-line supervisor (S1) called her a “trouble- maker;” (4) from April 14, 2015 to August 25, 2015, S1 continually bad-mouthed her and openly talked negatively about her to her co-workers; (5) on an unspecified day during the week of April 13, 2015, S1 called her a “trouble- maker;” (6) on March 19, 2015, during a training session conducted by the former EEO Officer (EO), she asked a question about an Army Regulation (AR) 15-6 investigation and the fact that it was conducted by the organization in question to which S1 remarked: “Why won’t she just let that go?;” and (7) on April 18, 2016, she was informed by S1 that she was being moved to a shared space area, which decision was overruled by the Director of the LRC (S2).3 After 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 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 failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND The record shows that on March 18, 2014, Complainant made initial EEO contact with respect to an allegation of sexual harassment against a former co-worker in a prior EEO matter.4 The record shows that S1 is familiar with Complainant’s prior EEO complaint because she was assigned to conduct the internal Army Regulation (AR) 15-6 investigation into Complainant’s allegations of 3 During an initial status conference on June 1, 2016, Complainant was granted the request to amended her complaint to add Claim 7 based on retaliation. 4 Neither S1 nor C1 were identified as responsible management officials in the prior EEO matter. 0120171130 3 sexual harassment, in or about April/May 2014.5 At that time, Complainant worked under a different supervisor. After Complainant notified S2 of the sexual harassment allegations in or about April 2014, (upon Complainant’s request) he moved her to S1’s unit. On June 24, 2015, Complainant sent an e-mail to the then-Human Resources Task Force chairperson (HR), with a copy to S2, where she raised purported incidents she had experienced with various co-workers, including one in which an unnamed employee had told her that a small group of unnamed employees had been talking when one of them called her a “witch” and the whole group allegedly “broke out in laughter.” Complainant also complained: (1) that a female co-worker “blurted oh s***” on two occasions as Complainant walked by her; (2) that she was “badmouthed by leaders;” (3) that she was “flipped off on the highway” by one of her male co- workers; and (4) that she witnessed an unnamed male employee calling an unnamed female employee a “b****”. The apparent focus of Complainant’s e-mail was her belief that she was “not part of the ‘LRC team’ but would still like to be respected as a professional.” The following day, S2 emailed a memorandum to all LRC-Riley personnel entitled “Mutual Respect” in which he outlined his expectations that co-workers treat each other professionally and respectfully. S2 required that each employee acknowledge receipt, read the memorandum, and affirmatively agree to abide by its contents. On July 16, 2015, C1 engaged in a conversation with Complainant during which he made the comment, “have you been hovering on your broom lately” and/or inferred that she was a “witch.” On July 28, 2015, Complainant made official contact with an EEO official regarding this issue. On April 19, 2016, six days after requesting a hearing in this matter, Complainant received an email from S1 notifying her that relocation of office spaces was being considered by management and that Complainant would likely be moved from a private office to a shared space. ANALYSIS AND FINDINGS 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”). To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was 5 S1 found insufficient evidence to substantiate Complainant’s allegations of sexual harassment or other inappropriate behavior. 0120171130 4 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). Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v. Dep’t of Health and Human Ser’v., EEOC No. 0120150971 (Nov. 22, 2017). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B(2) (August 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Retaliation claims occur under three circumstances: (1) where the plaintiff suffered from some type of adverse employment action (as discussed above); (2) where the plaintiff was subject to retaliatory harassment by a supervisor; and (3) where the plaintiff suffered from retaliatory harassment by coworkers. See Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000); Hawkins v. Anheuser Busch, Inc., 517 F.3d 321, 346 (6th Cir. 2008). Claims 1 and 2 - Witch Comments The record shows that Complainant could only recall witnessing one incident (occurring on July 16, 2015) in which C1 made some type of “witch” comment to her directly and one incident (occurring on June 22, 2015) where she was told that an unnamed individual made such a comment one-time previously.6 The only witness (W1) to verify one of these incidents testified that the context was “in a joking manner since they were talking and laughing about something.” C1 testified that he apologized to Complainant on July 16, 2015, upon Complainant telling him that 6 C1 denies having malicious intent toward Complainant and denies that any “group bashing” ever occurred. 0120171130 5 she was offended by the comment, because the last thing he wanted to do was offend his friend. C1 testified that he and Complainant were friends and they often joked with each other. According to C1, after he apologized, Complainant told him that he shouldn’t be concerned about it. Complainant admits that C1 apologized for the comment and identifies no other similar incidents after she informed C1 that his comment was offensive. Claims 3-6 – S1’s Comments and Animosity Toward Complainant Aside from Complainant’s bare, uncorroborated assertions, the record is devoid of evidence to establish that S1 made any of the comments alleged in Claims 3 through 6. S1 denies making the alleged comments. In addition, employees within the LRC attest to S1’s even-handed approach and superior leadership qualities.7 Claim 7 – Notification of the Possibility of Room Assignment Changes Complainant argues that her request for a hearing “was received by the Agency on April 12, 2016.” However, nothing in the record indicates that S1 was aware of the hearing request at that time. Complainant further asserts that six days later, she was informed that she would be moved from a private office to a space she would share with four other employees. The sole evidence to support this claim consists of an April 19, 2016 email exchange between S1 and Complainant, which Complainant provides for the first time on appeal. The email exchange indicates that there had been a staff meeting where possible room assignments were discussed in relation to a planned reorganization within the directorate. According to Complainant, the room assignments were not implemented. Upon review of the record, we find insufficient evidence to support the conclusion that S1 made any derogatory comments about Complainant. We also find insufficient evidence in the record to prove, by a preponderance of the evidence, that S1 was motivated by retaliatory or gender animus when she notified Complainant about a possible office relocation. We note that in response to the notification regarding office relocation, Complainant threatened to go to EEO if she did not get her desired room assignment, which discredits Complainant’s assertion that S1’s conduct reasonably deterred her from engaging in protected EEO activity.8 We also find insufficient evidence in the record to establish that C1 was motivated by retaliatory animus when he made the “witch” comment to Complainant. Assuming there is sufficient evidence to establish that the alleged witch comments were motivated by gender animus, the record does not support the finding that such comments were sufficiently severe or pervasive to alter the terms or conditions of Complainant’s employment. 7 For example, one employee describes S1 as “a strong leader who cares for her personnel equally, regardless of sex or ethnic background.” 8 We also note that while the Agency failed to specifically address Claim 7, as noted herein, Complainant fails to present sufficient evidence that S1’s notification pertaining to room assignments was motivated by discriminatory or retaliatory animus. Accordingly, the Agency’s failure to address Claim 7, does not alter our decision herein. 0120171130 6 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFRM the Agency’s final decision finding that Complainant did not establish that she was discriminated against as alleged. 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. 0120171130 7 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 June 14, 2018 Date Copy with citationCopy as parenthetical citation