0120152798
12-06-2017
Hettie T.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hettie T.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120152798
Agency No. FS201400563
DECISION
On July 28, 2015, 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 July 1, 2015, 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.
ISSUE PRESENTED
Whether Complainant established that she was discriminated against and harassed based on sex (female), and reprisal when management denied her the opportunity to advance including denying her promotions, training, and details.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a HR Assistant, GS-0203-07 at the Agency's Albuquerque facility in New Mexico. Complainant had been involved as a witness in a prior Merit Systems Protection Board (MSPB) case in which a former Assistant Director for Compensation and Human Resource Support and Security was demoted for conduct unbecoming a Federal employee and for lack of candor. Complainant received numerous communications from the former Assistant Director that were deemed inappropriate. Following the decision and its implementation, Complainant continued to work at that location. She believed that she was subjected to discrimination in promotional and other work related opportunities, in part, because of her involvement in the above referenced matter.
On July 11, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against and harassed her based on sex (female) and reprisal when:
1. On unspecified dates, management denied her the opportunity to compete for vacant positions by advertising them at higher grades so that she could not qualify;
2. On unspecified dates, management denied her opportunities to advance, including denying her training and mentoring, and limiting her opportunity to work on "higher level" cases;
3. On an unspecified date after January 25, 2013, she was found unqualified and was not referred to the Selecting Official for a temporary promotion/detail to the GS-0203-08, Human Resources (HR) Assistant position, advertised in a FS Outreach Notice;
4. From October 1, 2012 to April 21, 2014, management failed to give her appropriate credit in her position description (PD) for the collateral duties she performed for the Region 3 Employee Relations (ER) Team;
5. On April 20, 2014, management terminated, one week early, her temporary promotion/detail to the GS-0201-09/01, HR Specialist position;
6. On April 21, 2014, management removed her collateral duties, which she had been performing for the Regional 3 ER Team since October 1, 2012, reassigned those duties to another employee, and on June 16, 2014, asked her to train the employee who assumed the collateral duties;
7. On April 30, 2014, she learned she was not selected for any of the GS-0201-07/12, HR Specialist positions advertised under Job Announcement Number 14-HRM-FS2603L-JA-REV; and
8. On various dates since July 2011, she was subjected to incidents of harassment, including, but not limited to:
a) On various dates from October 2011 to February 2012, management denied her the use of a laptop computer;
b) On unspecified dates after November 10, 2011, employees in her office gossiped about allegations against her that were included in a MSPB decision affirming the demotion of one of her supervisors;
c) On or about April 18, 2012, a Labor Relations Specialist falsely blamed her when a deadline was missed, and laughed at a demeaning comment about her regarding whether she could read;
d) In November 2012, her second level supervisor repeated a remark about her, "I thought [she] knew what she was doing;"
e) In November 2012, management delayed processing her within-grade pay increase, although it was later implemented retroactively;
f) In February, March, and April 2013, and again in June and July 2014, management gave her conflicting information about whether there would be vacant positions advertised for which she could qualify;
g) On or about April 30, 2013, she learned that, despite assurances to the contrary, management planned to advertise a vacant position at the GS-12 level only. Her supervisors implied that she could either leave or accept that she would not have equal opportunities, and her supervisors told her to try to "attract the attention of the Region 3 Forester" in order to advance her career;
h) On unspecified dates after May 24, 2013, management assigned her to call the references of the candidates being considered for the job that management refused to advertise at a grade level for which she could qualify;
i) In September and November 2013, management again announced untruthfully, the intention to advertise a career ladder position for which she could qualify;
j) In September 2013, the Region 3 ER Team Supervisor increased criticism of her work;
k) In December 2013, and January 2014, management delayed the start of her detail to the GS-0201-09 HR Specialist position, a detail she performed from January 12, 2014 to April 20, 2014; and
l) On or about April 7, 2014, the Region 3 ER Team Supervisor admonished her in an email, and reported her to her second level 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). The decision concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant's statement on appeal raised no new contentions.
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").
Sex and Reprisal
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming Complainant established a prima facie case of discrimination based on her sex and reprisal, we find that the Agency has provided legitimate, non-discriminatory reasons for each of its actions, and that Complainant did not establish pretext, i.e., that the legitimate, non-discriminatory reasons for the Agency's conduct were really based on her sex or her previous EEO related activities. To accomplish that objective, Complainant must provide facts that demonstrate that her sex and prior EEO activity were more likely than not the Agency's motivating factor in making its decisions regarding her non-selections.
For example, Complainant did not demonstrate that females were subjected to the denial of promotions, training, and details to higher level positions at significantly higher levels than males. This showing of disparate treatment requires that evidence of males being favored over females under the same circumstances has occurred. The evidence must be actual and specific. We note that evidence of this type was not presented. Further, a review of the positions filled during the time at issue showed that most of the positions at issue were filled by females. Moreover, Complainant did not show that her qualifications were so demonstrably superior to that of the selectees' for promotion, training and details that discrimination based on sex or previous EEO activity were the only reasonable conclusions.
Accordingly, Complainant did not prevail on her claims of discrimination based on sex and reprisal.
Harassment
To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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).
Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis (in this case, sex or prior protected EEO activity). Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Complainant did not provide sufficient evidence to support a finding of discrimination based on harassment. Complainant did not demonstrate that her treatment was hostile or abusive. None of the claims set forth in Complainant's list of alleged violations in claim 8, rose to the level of a hostile work environment. Cancelling positions for business reasons does not rise to the level of harassment. Petty slights and work product criticisms also do not rise to the level of harassment. Title VII is not intended to be a civility code. Accordingly, we find that Complainant failed to prove that she was harassed. For the most part, the incidents cited by Complainant involved common work-related interactions that were neither severe or pervasive enough to rise to a hostile work environment nor do we find persuasive that they were based on Complainant's sex or prior EEO 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 FAD.
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. 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
_12/6/17_________________
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 that she was discriminated against based on her family status (divorced with two children); however, this basis is not within our purview.
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