0120100237
04-12-2012
Estelle S. Pearson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Estelle S. Pearson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100237
Hearing No. 570-2008-00001X
Agency No. 060002701626
DECISION
Complainant filed an appeal from the Agency’s September 18, 2009 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Secretary (Office Administration) at the Agency’s Headquarters,
Marine Corps Navy Annex facility in Washington, District of Columbia.
On October 6, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American),
national origin (African-American), color (black), sex (female), age (51),
disability (physical), and reprisal for prior protected EEO activity when:
a. In March 2006, Complainant's first level supervisor (S1) met with her
and the Deputy for LPC-1, concerning her interactions with E1. S1 told
her to not deal with E1 at all, but to go through the Deputy LPC-1 (D1);
b. On April 25, 2006, E1 would not provide Complainant the location of
a document she had to make changes to, nor move out of her office;
c. On April 25, 2006, E2 said to Complainant, “What kind of pot are
you smoking?”;
d. On April 26, 2006, E1 fussed and cussed at Complainant;
e. On May 23, 2006, C1 briefed Complainant on the results of a Fact
Finding Investigation into the events of April 26, 2006. Complainant
alleges that report blamed her for the incident involving E1 on April 26,
2006. C1 refused to provide Complainant a copy of the results; nor would
he allow her to review the final results;
f. On May 25, 2006, S2 stated to Complainant, in a disrespectful tone,
"You need to get back into the office!";
g. On June 8, 2006, S2 stated that Complainant must attend the LP
Division picnic although she was aware that Complainant did not attend
this picnic/function (in that she had not attended previous picnics);
h. On June 8, 2006, S1 tried to force her to attend the LP Division
picnic;
i. On June 9, 2006, S2 took away Complainant's administrative duties
and began to perform them herself;
j. On June 13, 2006, S2 taped an e-mail that she had sent to Complainant
on June 9, 2006, to Complainant's computer screen and highlighted the
text indicating the time and date of a meeting she was to attend;
k. On June 19, 2006, Complainant was informed by S1 that she needed some
additional work in two of her performance elements;
l. On November 13, 2006, S2 did not approve Complainant’s leave request
and changed the procedures to follow on requesting leave and the types
of leave Complainant could be granted;
m. On November 14, 2006, S2 decreased Complainant’s duties when she
removed Complainant from doing the Weekly Update, Defense Travel System
entries, and Document Messaging System;
n. On December 5, 2006, S2 changed the times Complainant is allowed to
report to and leave the work site;
o. On February 18, 2007, Complainant received an incomplete Position
Description along with her close-out performance rating;
p. On February 20, 2007, Complainant was reassigned to LPV, another
office within Installations and Logistics Division;
q. On February 20, 2007, Complainant was reassigned to an office that
could not provide her the accommodations necessary for her vision
limitations;
r. On February 20, 2007, Complainant was not given adequate time to
move her personal belongings to her new Agency directed reassignment;
s. On February 20, 2007, Complainant was given a Letter of Reprimand
by her second- level supervisor; and
t. In 2006, Complainant was not promoted by accretion of duties to a
GS-0301-9/11 Program Coordinator position.
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 EEOC Administrative Judge (AJ). Complainant
requested a hearing and the AJ held a hearing on July 15, 2009, and July
16, 2009. Thereafter, the AJ issued a decision on August 24, 2009.
In his Decision, the AJ observed that Complainant had failed to present
any evidence or argument of age-related discrimination.
Overall, the AJ found that the Agency articulated legitimate,
non-discriminatory reasons for each of the actions taken by
Complainant’s supervisors and management officials. For example, the AJ
noted that four weeks after Complainant was reassigned, she still had not
finished relocating her office materials. Complainant explained to her
supervisors that she was not done and that she had accumulated a lot of
materials in the 18 years that she occupied her former space. However,
the evidence showed that Complainant’s failure to move her office
materials was impacting the employee now assigned to Complainant’s
former office space. That employee could not move her own office
items into the space until it was cleared of Complainant’s materials.
The AJ found that Complainant did not show that the Agency’s reasons
for giving Complainant a 48-hour deadline for moving her things was a
pretext to mask discrimination on any basis.
With respect to Complainant’s claim of harassment, the AJ found
that Complainant failed to show that any of the incidents of which she
complains were based on her membership in any of the protected groups to
which she belongs. On the contrary, the AJ found nothing in the evidence
to support Complainant’s claim that any actions between Complainant
and her coworkers, or between Complainant and her supervisors, occurred
because of discrimination. The AJ considered that the only incident
to suggest any action was motivated by discrimination is the incident
in which E1 is alleged by Complainant to have made certain racist and
sexist remarks to her. However, the AJ found no evidence other than
Complainant’s assertions at the hearing, that E1 had referred to
her as a ‘black ass’ or “bitch” or “Aunt Jemima.” (claim
(d)). The AJ noted that the evidence indicated that E1 and Complainant
experienced personality differences. The AJ found that a number of the
incidents that Complainant termed harassment, were ordinary workplace
actions, personnel actions, and changes in the enforcement of Agency
policies and procedures that Complainant did not like. The AJ found that
the complaint taken as a whole was insufficiently severe or pervasive
as to rise to the level of harassment.
With respect to Complainant’s disability claim, the AJ found that
Complainant was a qualified individual with a disability and that
Complainant had been accommodated in her position for many years. The AJ
found that Complainant failed to establish that any of the actions were
actually motivated by Complainant’s disability.
The AJ found that Complainant had not shown that any of the Agency’s
explanations were unworthy of belief and that discrimination was the real
motivation for the Agency’s actions. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination on any basis as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the Agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the Complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the Agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at
802). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997). Complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a
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
(Sep. 25, 2000).
To establish a claim of harassment Complainant must show that: (1)
she belongs to a statutorily protected class; (2) he was subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on his statutorily protected classes; (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).
We concur with the AJ in finding that the alleged incidents of harassment,
even if true, were not sufficiently severe or pervasive enough to have
created a hostile working environment. We also concur with the AJ that
Complainant failed to establish that the actions described were motivated
by discrimination. Regarding the alleged denial of accommodation in
February 2007, we agree with the AJ that Complainant was provided with
the accommodation of her choice upon relocation of her office. We do
not address whether Complainant is an individual with a disability.
With respect to claim (l), we consider the Agency’s explanation
that Complainant’s supervisor (S2) denied Complainant’s leave
request in November 2006, because S2 had scheduled her own leave for
the same days previously, and therefore she requested that Complainant
consider other leave dates. Complainant presented no evidence that
S2’s reasons for denying her leave were untrue. Similarly, as the AJ
noted, S2 enforced the Agency’s policy regarding credit hours which
impacted Complainant’s reporting and departure times (claim (n)).
The evidence shows that prior to this, Complainant had earned credit
time on occasion by reporting early and working later than her scheduled
tour of duty, without being required to seek authorization in advance.
S2 stated that pre-authorization was always required and that either
Complainant or S2 needed to be in the office. Those requirements did
not represent a change in policy, but when S2 became Complainant’s
supervisor, Complainant was required to abide by the policy and seek
prior authorization to work credit hours. Additionally, S2 required
that Complainant have back up if she intended to take leave. We find,
as did the AJ, that Complainant did not present any evidence that S2’s
enforcement of the existing policy regarding credit time and leave was
motivated by discrimination.
CONCLUSION
We AFFIRM the Agency’s Final Decision, finding no discrimination.
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 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
April 12, 2012
__________________
Date
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0120100237
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100237