0120140254
05-18-2016
Heidi B.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Heidi B.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120140254
Agency No. FBI-2012-00074
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 23, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons stated below, we AFFIRM the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination and/or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to a hostile work environment based on her sex, race and/or disability.
BACKGROUND
Complainant worked as a Counterterrorism Intelligence Analyst (IA) for the Agency's San Francisco Field Office in San Francisco, California although she was physically stationed at the San Jose Resident Agency. On September 29, 2011, Complainant's supervisor (S1), the Director of the San Francisco Field Office, gave Complainant's squad an assignment to be completed by the end of December. A few weeks later, S1 added another assignment. Complainant expressed concern that she was not going to be able to complete the first assignment that was due by the end of December. S1 informed her that if she did not complete the assignment it would be reflected on her performance appraisal. Complainant began working on her days off and cancelled a planned vacation to work on the assignments. On December 19, 2011, S1 visited Complainant to discuss her progress on the first assignment.
Following their meeting, S1 sent an e-mail to Complainant which indicated that she appeared to be "really stressed out." He also told Complainant that he had noticed that she had been working many of her regularly scheduled days off and that he would be taking a hard look at any requests for comp time. He reminded Complainant that it was encouraged that employees get out of the office, clear their head, and experience life outside of the workplace. He indicated that there was nothing that they were doing that was worth risking personal or mental health.
Complainant responded to S1's e-mail and told him her "stress" was due to having recently returned from a trip to see family, catching a cold, and doing extra things to get ready for the holidays. S1 responded that Complainant would have to prove to him that her stress level was acceptable before he would allow her to work on other projects. S1 indicated that he had told Complainant that he had received reports that she had been "snippy" with other people, and that someone who is under a lot of stress or who is suicidal could give others the "heebee jeebees," resulting in that person becoming further isolated. Complainant told S1 he was not qualified to make a diagnosis of her mental state and he responded that he was qualified because he had taken psychology classes, had been a Navy Commander, and had attended stress management training.
S1 contacted Complainant's supervisor at the San Jose facility (S2). S2 had immediate supervisory responsibility of Complainant in the San Jose office. S1 told S2 that Complainant appeared stressed and demonstrated signs of being suicidal. He described Complainant's appearance as being pale and indicated that her hands were shaking when they talked. S1 indicated that he thought that Complainant's stress was affecting her work performance.
Complainant indicated that S1 shared with three other management officials that Complainant was suffering from stress that was affecting her work performance. Complainant indicated that S1 suggested to one of her coworkers that she should take Complainant to lunch. On December 30, 2011, S1 sent an e-mail to approximately 20 people which stated that he had "hopefully helped a high-performing IA continue to perform despite stress." Complainant said she was not aware of S1 making similar mental health diagnoses of male or white IAs. Complainant also said that another Asian woman IA who had worked for S1 before transferring told Complainant she felt S1 diminished the IA's accomplishments and was very critical of her work.
Complainant claimed that she was further harassed when S1 assigned her to a six-month temporary duty assignment (TDY) in San Francisco "to give me a break from a stressful situation." Complainant indicated that the assignment required her to commute more than 100 miles a day. Complainant notified S1 that commuting to San Francisco and working for a new squad would increase her stress, but he insisted on the TDY assignment even though another IA, who lived closer to San Francisco had volunteered for the assignment. Complainant maintained that, at the urging of S2, S1 ultimately allowed Complainant to split the TDY assignment with another IA.
On April 19, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (Asian), sex (female), and disability (mental) when between December 20, 2011, and January 3, 2012, her supervisor:
1. sent her a series of e-mails stating that, when they spoke on December 19, 2011, Complainant appeared stressed;
2. made inappropriate remarks about Complainant's demeanor and appearance and told her that "people in a stress/suicidal stage can give others the 'heebee jeebees,'" which can result in them becoming isolated;
3. conveyed to other employees and/or management officials that Complainant was suffering from stress, that she was suicidal, and that her performance was declining;
4. restricted Complainant from working on her regularly scheduled days off;
5. placed Complainant on a temporary duty assignment (TDY) that required her to commute more than 100 miles per day; and
6. told Complainant she had to prove to him that her stress was not a problem before he would consider revising the restrictions he had placed on her.
Following an investigation by the Agency, Complainant was given the choice of a hearing or a FAD but when Complainant did not respond in a timely manner a FAD was issued. The FAD found that Complainant failed to establish that she was subjected to a hostile environment. Specifically, the Agency maintained that in an effort to establish that either her sex or race were factors in S1's actions, Complainant's only claim was that she was unaware of S1 diagnosing any male or white lAs as suffering from stress. Management maintained that this was wholly insufficient to establish that S1 took any actions against Complainant because she was a woman or because she is Asian. Management maintained that other than Complainant's conclusory opinion, there was no evidence that S1 harbored any animus towards Complainant because of her sex or race. Management maintained that S1 took the complained of actions because he believed Complainant was suffering from stress, not because of her sex or race.
Further, management maintained that Complainant's hostile work environment claim based on a perceived mental disability also failed because there was insufficient evidence that S1 subjected Complainant to any severe or pervasive conduct. Complainant claimed that, because S1 perceived her as being stressed, he told her he wanted her to stop working on certain projects until she proved to him that her stress was under control. She also accused S1 of making inappropriate remarks about her demeanor to S2, and of referencing her stress in an e-mail to other employees, and she said she was further harassed when she was forced to work a TDY assignment in San Francisco. Management indicated that even viewing all of these incidents together, the record does not establish that Complainant was subjected to conduct which was severe or pervasive enough to rise to the level of violating the Rehabilitation Act. According to the Agency, the record established that S1 witnessed signs of stress in Complainant and believed her situation warranted monitoring. Complainant even admitted that she was stressed, but said it was because of personal reasons and had nothing to do with her workload.
Management maintained that the actions of S1 were not severe or pervasive enough to establish a hostile work environment. The fact that S1 wanted to keep a closer eye on Complainant based on his concern for her, even if Complainant believed that concern was unnecessary, was not the type of severe conduct necessary to establish actionable harassment. In fact, the Agency maintained that S1's decision to closely monitor Complainant's requests to work on her days off was designed to assist her by giving her breaks from her work. According to the Agency, the fact that Complainant believed S1's scrutiny of her workload and her work schedule was unnecessary does not establish that his actions constituted discriminatory harassment. Similarly, the Agency argued that S1's expression of his concerns to other management officials was not harassing behavior, and that while S1's e-mail to staff members referencing his having helped a "high performing IA continue to perform despite stress" may have been ill-advised, it certainly did not rise to the level of severe harassment.
Finally, with respect to Complainant's argument that she was harassed when she was required to work a TDY assignment in San Francisco, management indicated that while it may not have been convenient for Complainant because of the longer commute, there is no evidence that the assignment constituted harassment. Complainant had originally indicated that she was interested in a TDY assignment and when this became available it was determined that she was the best qualified for the position. Complainant was given a car for the commute and was allowed to count her commuting time as part of her workday. Moreover, Complainant was, eventually, allowed to split the assignment with another IA and only had to commute to San Francisco for about two weeks. The decision to send Complainant on the TDY assignment was a management decision based on the needs of the office, not a decision made to harass Complainant.
CONTENTIONS ON APPEAL
Complainant disputes the Agency's findings that she was not discriminated against on the bases of sex and race. She maintains that S1 had exhibited a similar pattern of behavior with another Asian female IA who left the squad after complaining that S1 harassed her and disparaged her work performance, despite her continually receiving high performance reviews from other officials for whom she worked. Complainant maintains that this employee was willing to discuss her experiences with S1 but she was never interviewed. Moreover, Complainant asserts that she believes her sex and race were factors because S1 did not make public comments, provide any mental diagnoses or counseling, or restrict work schedule or activities for male IAs who were perceived as underperforming.
Complainant also disputes the findings of fact relating to her purported signs of stress and the Agency's determination that S1 did not subject her to severe or pervasive conduct. Complainant maintains that she was not stressed out from work when S1 initially expressed his concerns but the ensuing stress on her was the result of S1's actions.
Further, Complainant contends that S1 was in no position to diagnose whether she was stressed. Complainant maintains that no other coworker believed she was stressed. Complainant contends that S1's comments about her work performance and demeanor carried substantial weight with Complainant's colleagues. She maintains that she became worried about her career and maintaining her security clearance after S1 made several allusions to suicide. She maintains that S1's disparaging comments, to her as well as other supervisors and colleagues, about her supposed stress and his allusions to suicide, created an environment that unreasonably interfered with her work performance and created an environment that a reasonable person would find intimidating, hostile, or abusive.
Finally, Complainant maintains that while the Agency ultimately got her a car to drive to the TDY assignment, initially she was told to take public transportation. Moreover, she maintains that she was never told that commuting time could be counted as part of the work day, and as a result, she regularly traveled 2-3 hours in traffic, round-trip, in addition to working her regular nine hour day while on the TDY assignment. Complainant asserts that contrary to the Agency's argument that she drove only two weeks, she drove more than a month and after that month, she was still required to commute into the city 2-3 times a week for the remainder of the TDY. Complainant states that S1 keeping her in the TDY position constituted harassment.
In response, the Agency requests that its FAD be affirmed. The Agency maintained that it fully addressed the issues raised by Complainant and provided a well-reasoned analysis of the record in reaching its conclusions. The Agency maintained that in bringing her appeal, Complainant provided no basis on which to reverse the findings of the FAD. As a result, the FAD should be affirmed.
ANALYSIS AND FINDINGS
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, 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 her 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 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, among other things, 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.
Upon review, we find that Complainant has not established a claim of harassment. Complainant has not provided evidence which indicates that she was subject to conduct which had the purpose or effect of unreasonably interfering with her work performance, and/or created an intimidating, hostile, or offensive work environment. We find, in light of the standards set forth in Harris, no persuasive evidence that the incidents -- six comments taking place over a one month period - even if accurately described by Complainant, were sufficiently severe or pervasive enough to have unreasonably interfered with her work performance and/or to have created an intimidating, hostile, or offensive work environment.
While S1's comments, at times, were intrusive, presumptuous, paternalistic, and self-aggrandizing, we are not persuaded that they were made because of Complainant's sex, race, or perceived disability. The record supports management's claim that S1 met with Complainant and found that she appeared stressed. Complainant admitted that she was stressed but that it was not due to work. We find it reasonable that S1's would alert his managers that he believed Complainant was under stress. In this regard, we note that it is clear from the record that S1 considered Complainant to be a very high level performer and he did not want anything to affect her work production. Further, we note that while S1 did send an email to 20 IA's regarding his having saved a stressed IA, he did not identify Complainant in the email so she would have had to self-identify for others to know that he was referring to her. Finally, with regard to the TDY assignment, management asserted that Complainant was the best qualified person for this job and that she in the past had indicated that she was interested in the position. We find no persuasive evidence of pretext or discrimination here. As we do not have the benefit of an AJ's findings after a hearing, as Complainant did not request a hearing in a timely manner, we can only evaluate the facts based on the weight of the evidence presented to us.
We find that based on the totality of the circumstances and a review of the contentions raised on appeal, Complainant did not demonstrate that she was subjected to a hostile work environment. Accordingly, the preponderance of the evidence of record does not establish that discrimination occurred. Therefore, the Agency's FAD which found that Complainant did not show that she was subjected to a hostile work environment is AFFIRMED.
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
__5/18/16_______________
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
0120140254
2
0120140254