0120140350
06-09-2016
Isabel F.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isabel F.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120140350
Hearing No. 531-2013-00141X
Agency No. HS-12-FEMA-00009
DECISION
On October 20, 2013, Complainant filed an appeal from the Agency's September 17, 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 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 timely raised her dissatisfaction with the processing of her EEO complaint; (2) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused her discretion when she dismissed Complainant's hearing request; and (3) whether Complainant established that the Agency subjected her to hostile work environment harassment on the bases of race (African-American) and age (50) in connection with her recertification casework production, an incident with a coworker and a subsequent meeting with management about the incident, and her use of annual leave.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Services Specialist (HSS), GS-0301-09, at the Agency's National Processing Service Center in Hyattsville, Maryland. Complainant's First Level Supervisor was the Supervisory HSS
(S1 - Caucasian, 54). Complainant's Second Level Supervisor was the Supervisory Program Specialist (S2 - Caucasian, 53).
On December 15, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race (African-American) and age (50) when:2
1. In 2011, management constantly criticized her recertification casework production. According to Complainant, her ability to process recertification cases was hindered by the noise level on S1's team, the complicated cases she was assigned to do, and the unhelpful mentoring she received from other employees.
2. On August 18, 2011, a coworker (CW1 - African-American, 44) made a comment to her that she found offensive. The previous week, Complainant was the victim of an armed robbery at a coffee shop. CW1 saw that Complainant had a cup from the coffee shop and said, "I know your boyfriend would not want you to go to [the coffee shop]." According to Complainant, it was inappropriate for CW1 to comment on the robbery or on her personal relationships.
3. On August 18, 2011, management met with Complainant to discuss CW1's comment. Complainant stated that the following occurred at the meeting: (a) when she said that she did not say anything in response to CW1's comment, S2 said, "[Complainant], you know better than that! You should have told [CW1] to stop! [The EEO Representative] would have told you to tell her to stop;" (b) management took CW1's side and said that CW1 was not at fault; and (c) when she said that she wanted to speak to someone else and did not want to continue with the meeting, S2 said, "No, [Complainant]. I am not going to end this meeting. I [was] told to resolve this situation to completion and I am going to do it." According to Complainant, management bullied her and did not allow her to leave the meeting.
4. On November 7, 2011, management forced her to take one hour of annual leave when she arrived at 6:30 a.m. Complainant normally worked a 6:30 a.m. shift, but had volunteered on November 4 to work the 5:30 a.m. shift on November 7. According to Complainant, management did not give her written verification, prior to her leaving work at 3:00 p.m. on November 4, that the 5:30 a.m. shift on November 7 was finalized.
5. On June 17, October 10, November 11, and November 25, 2011, management denied her requests for annual leave.
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 AJ. Complainant requested a hearing. On July 22, 2013, the AJ dismissed Complainant's hearing request. Specifically, the AJ found that Complainant did not comply with a May 16, 2013 order requiring her to produce discovery by June 5, 2013 and to submit a prehearing statement by July 8, 2013. In addition, the AJ noted that the May 16, 2013 order informed Complainant that failure to comply with the order might result in sanctions, including the dismissal of her hearing request. The AJ remanded the complaint to the Agency, and 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 hostile work environment harassment as alleged. Complainant then filed the instant appeal. We will address Complainant's contentions on appeal below.
ANALYSIS AND FINDINGS
Complainant's Dissatisfaction with the Processing of her EEO Complaint
On appeal, Complainant argues that the Agency's EEO staff did not provide her with guidance about the EEO process and did not respond to or gave unclear answers to her questions. In addition, Complainant argues that management infringed on her right to participate in the EEO complaint process by blocking her access to the copier and to the phone.
A complainant must raise any dissatisfaction with the processing of her complaint before the AJ issues a decision on that complaint, the agency takes final action on the complaint, or either the AJ or the agency dismisses the complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 5-29 (Aug. 5, 2015). No concerns regarding improper processing raised after a decision will be accepted by the agency, the AJ, or the Office of Federal Operations. Id.
Upon review of the record, we find that Complainant did not timely raise her dissatisfaction with the processing of her EEO complaint. Specifically, there is no evidence in the record that Complainant raised her concerns regarding improper processing before the Agency issued its September 17, 2013 final decision. Accordingly, we decline to address those concerns on appeal.
AJ's Dismissal of Complainant's Hearing Request
On appeal, Complainant argues that she would like to have a hearing on her complaint.
An AJ has the authority to impose sanctions on a party that fails to comply, without good cause, with orders. EEO MD-110, at 7-10 (citing 29 C.F.R. � 1614.109(f)(3)). Such sanctions include, but are not limited to, the authority to: (a) draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information; (b) consider the issues to which the requested information pertains to be established in favor of the opposing party; (c) exclude other evidence offered by the party failing to produce the requested information; (d) enter a decision fully or partially in favor of the opposing party; and (e) take such other action as appropriate. Id. The AJ must place a party on notice that sanctions may be imposed before ordering their imposition. Id. at 7-10, n.15.
Upon review of the record, we find that the AJ did not abuse her discretion in dismissing Complainant's hearing request. Specifically, the record shows that Complainant did not comply with the AJ's May 16, 2013 order. In addition, the record shows that the AJ placed Complainant on notice that failure to comply with the May 16, 2013 order might result in sanctions, including the dismissal of her hearing request.
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 EEO MD-110, at 9-16 (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").
Hostile Work Environment Harassment
On appeal, Complainant argues that management's actions had a negative effect on her work. Specifically, Complainant asserts that management did not give her a variety of assignments, such as those that involved travel or special projects. In addition, Complainant asserts that S1 disrupted her work by yelling, over the office partitions, to the bilingual employees. Further, Complainant asserts that management was unconcerned about how her coworkers' actions had a negative impact on her work.
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). 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).
Upon review of the record, we find that Complainant did not establish a claim of discriminatory harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the incidents complained of were based on her race or age.
Regarding incident 1, S1 averred that Complainant was aware that employees had to adhere to expected time frames when processing cases. In addition, S1 averred that production was part of Complainant's position and was included in her performance evaluation. Further, S2 averred that S1 met with Complainant several times to inform her that her production was below the acceptable target and had her participate in several mentoring sessions to improve her recertification casework skills. The record contains management's documentation file for Complainant, which shows that S1 addressed Complainant's production issues on numerous occasions.
Regarding incidents 2 and 3, S2 averred that he explained to Complainant that, according to CW1, CW1 never intended to offend her and had attempted to apologize. In addition, S2 averred that he informed Complainant that he would direct CW1 to refrain from such personal commentary and that Complainant should alert management if the directive was not followed. Further, S2 averred that, because Complainant seemed very upset about the robbery, he suggested solutions such as the Employee Assistance Program, other counseling services, and the Family and Medical Leave Act. Finally, S2 averred that the meeting lasted for about one hour behind closed doors for privacy, but nothing prevented Complainant from leaving at any point and he did not recall her asking to leave.
Regarding incident 4, S2 averred that Complainant's schedule was updated at 9:59 a.m. on November 4 to reflect the 5:30 a.m. shift. In addition, S2 averred that the schedule change was immediately accessible to Complainant at her desktop computer and that she should have notified S1 if she no longer wanted to volunteer for the 5:30 a.m. shift. The record contains a printout, titled "Audit Trail with Memos," showing that a start time of 5:30 a.m. for November 7 was entered for Complainant's schedule at 9:59 a.m. on November 4.
Regarding incident 5, S1 and S2 averred that local management did not deny Complainant's requests for annual leave. Specifically, S1 averred that employee leave requests are forwarded to the Enterprise Agent Coordination Team (E-ACT), a scheduling team separate from local management, for approval. In addition, S2 averred that E-ACT reviews the requests and approves or denies them based on staffing needs. The record reflects that E-ACT approved Complainant's June 17 request, denied Complainant's October 10 request "due to current disaster activity," and denied Complainant's November 11 and November 25 requests "due to staffing requirements."
Accordingly, we find that, other than Complainant's bare assertions, there is no evidence in the record that the Agency subjected her to hostile work environment based on her race or age.
CONCLUSION
Complainant did not prove, by a preponderance of the evidence, that the incidents complained of were based on her race or age. 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 hostile work environment harassment 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
__6/9/16________________
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 rephrased and renumbered the allegations based on Complainant's formal complaint and affidavit testimony.
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