0120142210
09-13-2016
Iona A.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iona A.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120142210
Hearing No. 420-2012-00198X
Agency No. 2012MDA002
DECISION
On May 28, 2014, Complainant filed an appeal from the Agency's March 7, 20132, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Financial Manager at the Agency's Missile Defense Agency, Operations Directorate, Business Operations facility in Huntsville, Alabama.
On August 24, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (54), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On June 17 20113, Complainant's supervisory duties were removed;
2. From May 17, 2011 through September 26, 2011 Complainant was subjected to a hostile work environment; and
3. On an unspecified date, two Caucasian co-workers were allowed to move to another internal office without any loss or denigration to character or other adverse actions.
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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 21, 2013, motion for a decision without a hearing and issued a decision without a hearing on March 31, 2014. Specifically, we note initially that the AJ did not analyze claim 1 under a disparate treatment analysis but instead analyzed it solely as part of the hostile work environment claim in claim 2. With regard to the hostile work environment claim, the AJ found that the actions complained of were insufficiently severe or pervasive to create a hostile work environment. With regard to co-workers moving to another internal office, the AJ found that Complainant failed to make a prima facie case because the co-workers were not Supervisors like Complainant and hence were not similarly situated with her. The AJ further found that even assuming Complainant made a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for its action, namely that the two co-workers were allowed to move as part of a reorganization that better served the Agency and its customers, and that Complainant failed to establish that the Agency's articulated reason was a pretext. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination with regard to claim 1.
Complainant alleges that in June or July of 2011, her Manager (M: African American, male, born 1958) notified her that "the section I managed, Director of Business Operations, was disbanded" and that "I am on the list to be removed from my office and placed in a cubicle because I am not a supervisor anymore." Instead, M told Complainant that "my new duties are Special Assignments." M averred that the reason for the change was because "a major function . . . was removed from my section. This resulted in her being removed from a Supervisory position." Report of Investigation (ROI), Exhibit F2, p. 2. He further averred that:
Originally the Complainant was responsible for Budget Execution, Funds Control, Accounting Operations, and Travel. [M's own supervisor] removed the Budget Execution Function from my area responsibility [sic] to another area . . . to make the organization more efficient. Prior to my reorganization I had told her (Complainant) that she was no longer responsible for Travel which was due to disagreements between us as to how Travel was to operate. She was left with Funds Control and Accounting Operations. In an effort to be more efficient I reorganized my section and moved Accounting Operations to Accounting . . .. There was not a sufficient area of responsibility to support an Assistant Director position and she was moved from a supervisory position to a non-supervisory position.
Id.
The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the agency's articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has not met this burden. The record shows that Complainant did not provide a rebuttal statement, nor has she provided any argument on appeal addressing the Agency's articulated reason for its action. In her Formal complaint, however, Complainant says "Even though [M] stated he based his decision on a reorganization, he appointed (another coworker), who came to [the facility] in December 2011, the supervisor over funds control and funds control would report directly to him, while also relocating the accounting operations section, and disbanded" Complainant's former section. We do not find such an argument establishes that the Agency's articulated reason for its action is a pretext for discrimination, or otherwise show discrimination occurred.
With regard to claim 3, we note that in order to establish a prima facie case, a complainant may show that she is a member of a protected class, that she was subjected to adverse treatment, and that she was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). Complainant alleges that "two Caucasians . . . were afforded opportunities to move without losing anything." However Complainant averred that neither of the comparators in question were supervisors and hence they were not similarly situated with herself. See Exhibits F1, p. 3, and F2, p.3. We therefore find that Complainant failed to establish a prima facie case and we discern no basis to disturb the AJ's finding in this regard.
Hostile Work Environment
We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's may not include the actions described in claims 1 or 3 as part of her hostile work environment claim. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that with regard to claim 1, Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive, and claim 3, Complainant failed to establish a prima facie case of disparate treatment. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Turning to the remaining incidents, and after removing the incidents addressed above, we note that the AJ's Decision lists the following incidents as part of Complainant's claim of hostile work environment:
Incident a) Complainant was ostracized by others for fear of losing their jobs;
Incident b) Complainant's character and reputation were denigrated;
Incident c) Complainant was retaliated against for speaking out i.e., calling out M for not allowing her to do her job, speaking out against M allowing subordinates to circumvent rules, speaking out against M for allowing his friendship with ______ to enter into the workplace;
Incident d) Harassing her for no apparent cause; and,
Incident e) Bullying - assignment of unreasonable workload, both personal
and professional.
With regard to Incident c) Complainant specifically alleges that any retaliation to which she was subjected was due to her speaking out against M. Such an allegation does not support her claim that she incurred harassment based on her race, age, sex, or in reprisal4 for engaging in protected EEO activity. Furthermore Incident d) is merely a restatement of her general claim that she was subjected to harassment and is not a stand-alone incident of harassment. After removing these two incidents we find that Complainant is alleging that she was ostracized by others for fear of losing their jobs; her character and reputation were denigrated; she was retaliated against; and she was bullied. Complainant averred that coworkers would avoid her, not talk to her, or acted nervous around her, previously approved training was denied, M questioned her timecard and raised his voice to her, and her name was removed from organization charts. See ROI, Exhibit F1, pp. 2-3. The bullying took the form of being issued a work assignment with an unrealistic completion date. See id.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that 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 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. 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 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, 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, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that 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. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record we agree with the AJ that any harassment experienced by Complainant was insufficiently severe to create a hostile work environment. Furthermore Complainant has not described harassment that was either based on or involved her age, sex, race, or prior EEO activity. Instead the record indicates that M demoted Complainant because of a personality clash, after which her coworkers treated her differently. This is not the same thing as being harassed based on age, sex, race, or prior EEO activity. Nor do we find any material fact at issue. We therefore discern no basis to disturb the AJ's findings.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the Agency's final order.
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
September 13, 2016
__________________
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 The final order is dated March 7, 2013. However this appears to be in error since this date predates Complainant's Formal Complaint.
3 In her Informal Complaint, Complainant gives the date as July 5, 2011 but in her Formal Complaint and in testimony during the investigation she gives the date as June 17, 2011.
4 We note in this regard that Complainant does not allege that her "speaking out" took the form of protesting against discriminatory activity
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