0120140349
09-16-2016
Hannah C.,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
Hannah C.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140349
Agency No. ARWSMR12MAR00710
DECISION
On September 11, 2013, Complainant filed an appeal from the Agency's August 1, 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., 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. 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.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency subjected her to disparate treatment on the bases of national origin (American), disability, and age (50) in connection with her non-promotion to a GS-09 position; and (2) whether Complainant established that the Agency subjected her to harassment on the basis of reprisal for prior protected EEO activity (contacting the EEO Counselor on March 12, 2012 and filing the instant complaint on April 18, 2012) in connection with eight incidents from April 19, 2012 to May 22, 2012.
BACKGROUND
In September 2010, Complainant began working as a GS-07 Business Development Specialist (Intern) at the Agency's Plans and Operations Office at White Sands Missile Range in
New Mexico. The full performance level of Complainant's position was GS-12. Complainant's first-level supervisor was the Chief of the Plans and Operations Office (S1 - Dutch, no disability, 49). S1 had selected Complainant for the intern position. One of Complainant's coworkers was a GS-11 Business Development Specialist (Intern) (CW1 - Dutch, no disability, 54), who was hired as a GS-07 in February 2010.
On March 1, 2012, Complainant contacted an EEO Counselor. On April 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her. Subsequently, Complainant amended her complaint. The Agency accepted the following claims for investigation:2
1. At a January 17, 2012, meeting, S1 subjected her to disparate treatment on the bases of national origin (American), disability, and age (50) when he chose not to promote her to a GS-09 Business Development Specialist (Intern) position.
2. From April 19, 2012 to May 22, 2012, S1 subjected her to harassment on the basis of reprisal for prior protected EEO activity (contacting the EEO Counselor on March 12, 2012 and filing the instant complaint on April 18, 2012) in connection with the following incidents:
a. At an April 19, 2012, meeting, he stated that an unauthorized commitment on her government credit card was her fault and she should have to pay for it out of her paycheck.3 She felt that he blamed her even though she had relied on information she received from CW1 who, unbeknownst to her, had not done adequate research.
b. On April 19, 2012, he forced her to undergo an unofficial workload analysis with two employees outside of the Plans and Operations Office (E1, E2). He had initially told her it would be a desk audit, but later changed it to a workload analysis after she confronted him about it. She felt that his decision to use E1 and E2 was a conflict of interest because he was friendly with them.
c. On April 19, 2012, he removed her from a photography project because it was higher-level work. She felt that, because she had already completed a lot of the project, she had shown she was able to do the higher-level work.
d. On April 23, 2012, he denied her request for a
120-day developmental assignment with the Directorate of Systems Engineering.
e. On May 10, 2012, after initially refusing to do so, he gave her a copy of a CA-1 form he had completed by hand. She felt that he had falsely claimed he completed the form online.
f. On May 15, 2012, he orally counseled her for defying authority and for making false statements in connection with an April 26, 2012, email and its attachments. In the April 26, 2012, email to him (and others), she wrote: "Attached is the 'desk audit/workload analysis' conducted unofficially and under duress by [E1] and [E2] along with my comments as per your request." He accused her of defaming his character and advised her that she could be terminated for insubordination if she continued to behave in such a manner.
g. On May 15, 2012, he took away her keys to the filing cabinet, which contained personnel files and some files she needed to access for work.4
h. In a May 22, 2012, email, he gave her assignments with unrealistic due dates. The May 22, 2012, email included three assignments with specific due dates: acquiring new photos for marketing brochures (June 8); modifying an article to adhere to a new theme (June 15); and letting him know when would be a good time to review the customer survey process (May 23). She felt that the due dates were unrealistic because she had other things going on, some of the assignments were things she had never done before, and she could not get clear guidance from him.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision analyzed Complainant's allegations under a disparate treatment framework and concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged. Complainant then filed the instant appeal. We will address Complainant's arguments on appeal below.5
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
Disparate Treatment (National Origin, Disability, Age) - Claim 1
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 national origin, disability, and age discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for not promoting her to a GS-09 Business Development Specialist (Intern) position in January 2012; namely, the main reason was Complainant's unacceptable performance in July-August 2011 in developing a customer survey brief for the General.
Fact-Finding Conference Transcript (FFC Tr.), at 193-210, 215-17. Specifically, S1 averred that Complainant's main job function was to conduct customer surveys, he had lessened her workload when she returned to work in July 20116 so she could focus solely on developing the customer survey brief, and he had emphasized to her that the customer survey brief was a priority. In addition, S1 averred that Complainant's performance was unacceptable because no overtime should have been required to develop the customer survey brief, but she needed 16 hours of overtime. Moreover, S1 averred that Complainant's need to work overtime to complete the customer survey brief for the General was a "major mistake" and he did not think that she was ready for a GS-09 position.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was pretexual. On appeal, Complainant argues that S1's explanation is not credible and that S1 treated her differently than CW1 with regard to promotions. Among other things, Complainant asserts that she spent most of July 2011 catching up on other tasks because she had been out of the office. In addition, Complainant asserts that S1 did not tell her about the customer survey brief for the General until August 2011; S1 initially told her on August 10 that he would need it in a couple of months, but later told her on August 16 that he would need it by August 22. Moreover, Complainant asserts that S1 had promoted CW1 numerous times, from GS-07 to GS-09 and from GS-09 to GS-11.
Upon review of the record, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for national origin, disability, or age discrimination. Documentary evidence in the record tends to support S1's explanation. Specifically, the record contains a duties list, emailed by S1 to Complainant on July 12, 2011, showing that Complainant's duties included compiling customer survey data and creating briefs from the customer survey data. ROI, at 107-08. In addition, the duties list shows that customer survey tasks were Complainant's top priority. Id. at 110. Moreover, the record contains Complainant's performance evaluation for the October 2010 to September 2011 rating period in which S1 indicated, "Survey and [b]rief generation took . . . too long, given it was employee[']s top priority. Please work on this task in a steady fashion so no overtime is needed to accomplish." Id. at 142. Although Complainant asserts that she was catching up on other tasks in July 2011, it is clear from the duties list that customer survey tasks were her top priority. Although Complainant asserts that S1 did not tell her about the customer survey brief for the General until August 2011, it is clear from the duties list that creating briefs from customer survey data was part of her regular duties. Although Complainant asserts that S1 had promoted CW1 numerous times, she did not show that S1 had any concerns about CW1's performance.
Based on the above, we conclude that Complainant did not establish her claim of disparate treatment on the bases of national origin, disability, or age in connection with her non-promotion in January 2012.
Harassment (Reprisal for Prior Protected EEO Activity) - Claim 2
To establish a claim of retaliatory harassment, a complainant must show that: (1) they engaged in prior protected EEO activity; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the prior protected EEO activity; (3) the harassment complained of was based on their prior protected EEO activity; (4) the harassment was sufficiently material to deter protected EEO activity in the given context; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at II.B.3 (Aug. 25, 2016).
On appeal, Complainant argues, among other things, that many of the incidents occurred shortly after she filed her EEO complaint and that S1 was often in "attack mode" after she filed her EEO complaint. In addition, Complainant states, "[I]t started with [a coworker (CW2)] and because of [CW2's] close friendship with [S1], that discrimination got kicked up a notch once [S1] became my supervisor . . . There have been other people who've left our department because of [S1]'s condescending and discriminatory ways. I'm not the only one." Moreover, Complainant argues that S1 and other witnesses lied at the fact-finding conference testimony. Finally, Complainant argues that the fact-finding conference transcript did not adequately capture the "verbal and visual things" that occurred that day.
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 prior protected EEO activity (contacting the EEO Counselor on March 12, 2012 and filing the instant complaint on April 18, 2012).
First, although the incidents occurred shortly after Complainant filed her EEO complaint, we find that S1 provided non-retaliatory explanations for them. FFC Tr., at 211-15, 222-56, 275. Regarding incident (a), S1 averred that Complainant was solely responsible for the purchases on the credit card as the credit card holder and she made an error by not checking the contract prior to making the purchase. Regarding incident (b), S1 averred that he wanted to transfer a credit card purchasing task to Complainant but she had previously told him she was overworked, he had initially and incorrectly told her it was a desk audit (a review of the duties being performed to evaluate whether the position should be a higher grade or a lower grade) but later clarified to her that it was a workload analysis (a review of the duties being performed to understand how much work there is and how long it takes to do a particular task), and he picked neutral people who did not work in the Plans and Operations Office. Regarding incident (c), S1 averred that Complainant had gone outside the scope of the project. Regarding incident (d), S1 averred that he wanted Complainant to demonstrate sustained performance in her current position before taking on a new developmental assignment. Regarding incident (e), S1 averred to the following sequence of events: he submitted to Human Resources (HR) a copy of the CA-1 form he had completed by hand, HR informed him that he needed to complete the form online, he completed the form online, Complainant requested a copy of what he had completed but he was unable to print the online copy, he referred her to HR, and HR emailed her the handwritten copy within a week of her requesting it. Regarding incident (f), S1 averred that Complainant defied his authority when she knowingly made false statements about the nature of the workload analysis; she continued to accuse him of conducting an illegal desk audit even though he had clarified to her that he was conducting a workload analysis. Regarding incident (g), S1 averred that the due dates were not unrealistic and he had given Complainant assignments with due dates before she filed her EEO complaint. Regarding incident (h), S1 averred that he wanted to personally control the keys after some personnel records went missing, he later discovered that the filing cabinet was not secure because it could be opened with other keys, and he returned the keys to Complainant after he removed the personnel files from the filing cabinet to store elsewhere.
Second, the record tends to show that Complainant and S1 had a contentious work relationship that predated her protected EEO activity. For example, Complainant averred: "After [S1] became my boss[,] I felt that there was discrimination, a pre-bias against me because he's best friends with [CW2], who had been bullying me for quite some time. And they're best friends. So I believe he came into the role as my supervisor with the bias against me." FFC Tr., at 37. In addition, Complainant averred that there was a "personality conflict" between her and S1.
Id. at 133. Moreover, Complainant averred that S1 encouraged her to take the intern position "to get rid of me, because [S1 and my coworkers] don't like me. I think [S1 and my coworkers] don't like me because I'm a competent worker and I get my job done, and . . . that's who bullies typically target. They target the competent people because they . . . have no self-esteem themselves." Id. at 415-16. Although Complainant asserts that S1 ramped up his bullying behavior after she filed an EEO complaint, we find no clear evidence to support her assertion.
Had Complainant requested a hearing before an AJ, the AJ could have made credibility determinations based on witness testimony. See generally EEO MD-110, at Ch. 7. As Complainant did not request a hearing, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that S1's conduct was based on her prior protected EEO activity.
CONCLUSION
Complainant did not establish that the Agency subjected her to disparate treatment on the bases of national origin, disability, or age in connection with her non-promotion to a GS-09 position. Complainant did not establish that the Agency subjected her to harassment on the basis of reprisal for prior protected EEO activity in connection with eight incidents from April 19, 2012 to May 22, 2012. Therefore, 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 did not establish discrimination as alleged.
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
_9/16/16_________________
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 For purposes of clarity, we have renumbered and rephrased the claims based on Complainant's fact-finding conference testimony and the documentary evidence in the record.
3 No money was taken out of Complainant's paycheck.
4 On May 21, 2012, S1 returned the keys to Complainant.
5 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The record reflects that Complainant submitted supporting statements on September 11, 2013 (along with her notice of appeal) and on December 17, 2013. The Commission declines to consider the December 17, 2013, supporting statement, as it was untimely pursuant to 29 C.F.R. � 1614.403(d).
6 Complainant was on Family and Medical Leave Act (FMLA) leave from May to July 2011.
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