0120140305
05-04-2016
Estelle H.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Estelle H.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120140305
Agency No. ARCEUFCRM12JAN00282
DECISION
On October 14, 2013, Complainant filed an appeal from the Agency's September 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against and harassed Complainant on the bases of race (Caucasian) and sex (female), when:
1. On January 25, 2012, the Agency removed her from a supervisory position, without affording her the opportunity to rebut the charges and taking another employee's side; and
2. Agency managers routinely and frequently belittled her, prevented her from doing her job and undermined her authority as a supervisor.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Administrative Specialist at the Agency's United States Army Corps of Engineers Logistics Activity Center in Millington, Tennessee. On January 19, 2012, Complainant met with the Chief, Business Operations (CBO) (Black, female) to discuss a personnel action. Complainant disagreed with the action and allegedly started shouting at CBO and called her a liar. CBO stated that Complainant's conduct was unprofessional and as CBO started to leave, Complainant allegedly moved toward CBO "aggressively" and shouted, "get out of my office!" CBO stated that she felt that Complainant would have physically assaulted her had she not left Complainant's office.
CBO immediately went to Complainant's supervisor (S1) (Black, male) to report the incident, who asked her to follow-up by sending him an email. S1 then went to Complainant to ask her about the incident. Later that day, S1 conducted a meeting with Complainant, CBO and two other managers who served as witnesses. S1 stated that altercations in the workplace would not be tolerated and that he would conduct an investigation into CBO's allegation. S1 interviewed witnesses to obtain their accounts of the incident. S1 also asked Complainant to provide a written statement of the incident. Complainant provided her statement on January 25, 2012, in which she alleged that CBO screamed at her. Complainant also denied getting up from her chair during their meeting.
Also on January 25, 2012, Complainant's second line supervisor (S2) (Caucasian, male) informed Complainant that she was reassigned to a non-supervisory position of Projects Officer. S2 noted that the January 19, 2012, incident was another example of her conduct unbecoming a supervisor. S2 wrote that Complainant continued to display "abrasive behavior and disrespect to leadership," and that she has not shown a willingness to correct her behavior.
On March 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against and harassed her on the bases of race (Caucasian) and sex (female),2 when:
1. on January 25, 2012, the Agency removed her from a supervisory position, without affording her the opportunity to rebut the charges and taking CBO's side; and
2. CBO, S1 and S2 routinely and frequently belittled her, prevented her from doing her job and undermined her authority as a supervisor.
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) on September 26, 2013. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency found that Complainant's managers removed her from her supervisory position due to her history of unprofessional interactions with others over an extended period of time. S1 stated that he counseled Complainant a number of times for her behavior towards her supervisors and subordinates. Additionally, S2 stated that he counseled Complainant after personally witnessing her disparage CBO.
The Agency also noted that the record does not support Complainant's allegation that she was not afforded an opportunity to rebut the charges brought against her. After learning of the incident on January 19, 2012, S1 went to Complainant and asked her what happened. He also requested that she provide a written statement, which was read and considered just prior to S2 informing Complainant of his decision to reassign her to a non-supervisory position.
The Agency also found that Complainant had not shown that she was harassed based on her race and sex. Rather, Complainant's managers decided to remove Complainant as a supervisor to prevent others from being subjected to a hostile work environment due to Complainant's actions. The Agency concluded that Complainant had not provided any evidence showing that the Agency's proffered legitimate, non-discriminatory reasons for its actions were pretext for discrimination.
Complainant filed the instant appeal and submitted her Brief in Support of Appeal on November 13, 2013. The Agency filed a Brief in Opposition to Appeal on December 12, 2013, requesting that the Commission affirm the final decision finding no discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency's final decision should be rejected because:
1. The report of investigation does not provide Complainant a reasonable opportunity to dispute the Agency's defenses or arguments; and
2. The Agency's proffered legitimate, non-discriminatory reasons for its actions are completely lacking in credibility and contradicted by the record.
ANALYSIS AND FINDINGS
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").
Disparate Treatment
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, she 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 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 her 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 had established a prima facie case of discrimination based on race and sex, we find that the Agency provided a legitimate, non-discriminatory reason for its action. Complainant's managers based their decision to reassign Complainant from a supervisory to a non-supervisory position on her history of unacceptable conduct. S2 stated that the January 19, 2012, episode was the "culminating incident" which led to the decision to remove her from a supervisory role. S2 further noted that he lost confidence in Complainant's ability to lead her team due to her actions, which have become very disruptive to the office.
The record also shows that S1 verbally counseled Complainant:
1. In 2010, for yelling and screaming at one of her supervisors;
2. In 2010, for yelling and screaming at an employee during a meeting, in front of other employees;
3. On June 16, 2011, for calling another supervisor "stupid";
4. On August 16, 2011, for being disrespectful, rolling her eyes, and using a threatening tone;
5. On August 17, 2011, for using an abrasive, loud, and disrespectful tone towards employees; and
6. On November 15, 2011, for disrespecting S1 when she turned and walked away from him.
S1 also issued Complainant a written counseling on August 18, 2011, informing her that she needed to improve her performance by ceasing to send "abrasive, attacking and demeaning emails." S1 noted that he had received several negative complaints about Complainant's behavior. Additionally, when S1 interviewed witnesses of the January 19, 2012, incident, they informed him they had witnessed Complainant "being disrespectful and unprofessional;" calling employees stupid; and "curs[ing] out several employees in the office."
Complainant alleges that the Agency's proffered reasons are not credible and are pretext for discrimination. Specifically, Complainant argues that the following are evidence of pretext:
1. No witness states that Complainant acted improperly or as described by S1 or CBO;
2. The fact that Complainant was not allowed to present her version of events or rebut CBO's allegation; and
3. The fact that Complainant's office was moved closer to CBO's.
Complainant claims that the record contained no witness statement regarding her improper behavior, apart from statements by S1, S2 and CBO. In support of her argument, Complainant highlights the testimony of two of her witnesses. The first witness (W1) provided testimony asserting that she believed S2 was motivated by Complainant's race and sex when he reassigned Complainant to a non-supervisory position. However, W1 did not offer any evidence of S2 acting with a discriminatory motive beyond her own personal opinion of a "feeling" based on her observations of actions related to other white women under CBO's supervision. W1 noted that one woman was removed from her position and another had job duties taken away from her. However, W1 stated that she did not know the circumstances in those other situations but did believe that the woman who had duties taken from her had requested to have them removed.
Complainant argues that the second witness (W2) contradicted CBO's version of the January 19, 2012, incident when he stated that while waiting outside Complainant's office, he witnessed CBO shouting, and that after CBO left, he saw Complainant sitting at her desk, which is something that she could not have been doing if she had physically approached CBO.3 Even crediting W2's statement, we find that there is more evidence in the record to support the managers' position that Complainant behaved inappropriately.
The record contains other witness statements regarding Complainant's behavior. One witness statement notes, "[Complainant] was allowed to operate out of control for a long time;" "she sent many harsh and inappropriate emails;" and she "spoke to employees in a disrespectful manner during meetings." Additionally, in response to the EEO counselor, one witness stated that she recalled an incident when Complainant shouted at CBO, and another witness heard Complainant raise her voice towards CBO on January 19, 2012. Additionally, the record shows that S1 spoke with eight witnesses during his investigation. Of those eight, only two stated that they had personal knowledge of the January 19, 2012, incident between Complainant and CBO. Both witnesses stated that they heard Complainant because she was "loud," but that they did not hear CBO.
Complainant further argues that she was not allowed to provide her version of events, which shows pretext for discrimination. Complainant highlights S2's testimony that he made the decision to reassign Complainant prior to receiving her written statement and that he did not allow Complainant to rebut the allegations. However, we note that S1 testified that he spoke with Complainant soon after the incident and that she explained her side to him. S1 also stated that when Complainant provided her written statement, he and S2 read it together to see if it contained any information that was different than what he had uncovered during the investigation and they found that it did not. We find it reasonable that when S2 made his decision, he had already factored in Complainant's version, after discussions with S1. Additionally, we note that the January 19, 2012, event was not the only reason for Complainant's reassignment to a non-supervisory position.
Complainant also argues that moving her office closer to CBO's shows pretext for discrimination because it makes no sense if the managers believed that Complainant was abusive and threatening towards CBO. We are not persuaded that Complainant's office move shows pretext for discrimination. We note that the January 19, 2012, altercation arose during a meeting to discuss a business matter, not because of any close physical proximity or personal animosity between Complainant and CBO. We conclude that Complainant has not met her burden of establishing that the Agency's proffered legitimate, non-discriminatory reasons for its actions were pretext for discrimination.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission finds that Complainant did not establish that the decision to reassign her from her supervisory position to a non-supervisory position was based on race or sex.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to 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 statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Complainant alleges that S1, S2 and CBO harassed her based on race and sex when they belittled her, prevented her from doing her job, undermined her authority as a supervisor and, removed her from a supervisory position on January 25, 2012. Some examples of the alleged harassing conduct include:
1. On October 4, 2011, S2 called Complainant an "imbecile;"
2. CBO would contact Complainant's employees directly, bypassing Complainant;
3. S1 yelled at Complainant, in front of others; and
4. On August 4, 2011, S1 sent Complainant an email "reprimanding" her for contradicting him.
Assuming, arguendo, that these incidents occurred as alleged and were unwanted, we find that they do not rise to the level of unlawful harassment. We note that Complainant has not shown that any of the incidents complained of were because of her race and/or sex. Additionally, we find that the alleged harassing conduct did not have the purpose or effect of unreasonably interfering with Complainant's work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that she was harassed based on race and sex.
On appeal, Complainant argues that she did not have a reasonable opportunity to dispute the Agency's defenses or arguments because the record is redacted and she is not able to identify the witnesses. While Complainant argues that it is impossible to evaluate any of the witnesses' credibility, she provides no reason or evidence to question any of the witnesses' credibility. Moreover, we note that we do not have the benefit of an AJ's credibility or other findings after a hearing, because Complainant did not request a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Accordingly, we are not persuaded that having the witness names redacted is sufficient to reverse the Agency's decision or remand Complainant's case for further processing.
Additionally, in her appeal brief, Complainant alleges that the Agency discriminated against her in reprisal when it removed her from a supervisory position, but it is unclear if she is appealing the Agency's dismissal of her reprisal allegation. However, based on the reasons above, we find that, even if Complainant established a prima facie of reprisal discrimination, she has not shown that the Agency discriminated against or harassed her based on reprisal for prior protected 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 finding that Complainant has not shown that she was discriminated against and harassed based on her race and sex when the Agency removed her from a supervisory position and when Agency management officials belittled her, prevented her from doing her job and undermined her authority as a supervisor.
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
__5/4/16________________
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 Complainant also alleged discrimination based upon reprisal but the Agency dismissed this claim because it found that Complainant had not identified any prior protected activity.
3 We note that the record contains an email from a witness (W3) recounting a meeting she had with Complainant and W2 when they accused S1, CBO and another supervisor of financial misconduct. W3 stated that she believed that Complainant and W2 were on a "witch hunt" and expressed concern that race was a motivating factor. W3 also noted that another employee informed her that W2 came to her and she felt that W2's actions and questions were "in an effort to support [Complainant]."
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