0120121597
07-27-2012
Jacquelyne Jones, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jacquelyne Jones,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121597
Hearing No. 560-2008-00203X
Agency No. ARFTLEAV07APR02333
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 11, 2012 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Specialist, GS-0301-11, for the Secretary to the General Staff (SGS) at the Agency's Combined Arms Center in Fort Leavenworth, Kansas.
On June 19, 2007, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII when:
1) On or about March 9, 2007, she was informed by her senior rater that one of her subordinate employees felt threatened by Complainant and that two other separate negative comments/reports had been made about Complainant.
2) On March 19, 2007, she was told by her senior rater that her supervisory duties were being removed from her position description;
3) On or about March 20, 2007, a subordinate employee made false allegations against her during a meeting.
4) On or about April 23, 2007, her rater and senior rater intimidated and belittled her, made false allegations against her, condoned subordinates' rudeness towards her and forced her to speak with the Union and an ECAP counselor.
5) On three/four occasions after filing her informal EEO complaint on April 23, 2007, she was accused of being disrespectful.
6) On April 24, 2007, she was informed by her supervisor that she could no longer use one duty hour per day for physical fitness.
7) On or about April 24, 2007, she was informed by her supervisor that her duty hours were being changed.
8) On or about April 24, 2007, she was not included in the electronic announcement regarding the change of the supply room lock combination.
9) On or about April 25, 2007, she was forced to speak with someone from the Inspector General (IG) office.
10) On or about May 1, 2007, she was treated harshly by management when she asked for assistance.
11) On or about May 8, 2007, she was treated harshly by management when she voiced opposition to reprisal and the hostile work environment to which she was being purportedly subjected.
12) On or about June 7, 2007, when she returned to work, her office space had been ransacked, her plants had had been destroyed, items had been removed from a box in her office, and the box was left on the floor.
13) On or about June 7, 2007, she was wrongly accused by her senior rater of falsifying her timecard.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but withdrew her request. The Agency issued a final decision in this matter.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions.
Concerning Complainant's claim involving a subordinate employee who felt threatened by her, Complainant's senior rater stated that since the affected employee brought this matter, which she deemed to be somewhat sensitive, to her attention, she thought it best to resolve it in a closed-door meeting without Complainant's input. Further, Complainant received no discipline as a result of any claims made by this subordinate employee.
Regarding the removal of Complainant's supervisory duties, management stated that this decision was influenced by several factors: the results of the Manpower Survey which affected the number of positions in the office, the fact that the impending conversion to the National Security Personnel System (NSPS) would affect what positions were considered supervisory, the fact that Complainant's position description was not accurate in relation to her supervisory responsibilities, and the need to streamline the structure within SGS.
Concerning Complainant not being allowed to continue using one hour of duty time towards physical fitness, management stated that they had initially issued a policy regarding physical fitness that applied to all civilians equally. When they realized that the policy did not comply with Army Regulation and the Fort Leavenworth Physical Fitness Program, they rescinded the original program and reissued the new program. The rescission applied to all civilians in SGS equally as did the new policy that was issued.
With respect to Complainant's duty hours being changed, Complainant's supervisor explained that Complainant's duty hours were never changed; he was simply asking her to establish what hours she desired to work and to notify him so that he could ensure coverage of the SGS office. He stated that he made the same request to the other two civilian employees in the office as well. Complainant's supervisor explained that he was making this request and going over several other items as part of a developmental counseling session he had with each subordinate employee.
Concerning Complainant not being included in an electronic announcement, management stated that this was a mistake and was not done intentionally. Complainant was soon provided the code information furnished in that e-mail.
With respect to Complainant's claim that she was accused of falsifying her time card, the Agency maintained that when a management official has concerns about suspected discrepancies on the subordinate's timecard they have a duty to get those issues clarified prior to signing off on the document. Complainant's senior rater stated that she knew Complainant was two hours late to work on June 7, 2012 but had only identified one hour of leave. This was sufficient justification to question Complainant about the issue.
Regarding Complainant's claim that her office space had been ransacked and her plants had been destroyed, the Agency maintained that Complainant's office had not been ransacked, and there is no supporting evidence to support this claim. The Agency further maintained that Complainant has not been subjected to a hostile work environment.
In conclusion, the Agency found that the events of which Complainant complains, either individually or collectively, fail to rise to the level of unlawful harassment prohibited by Title VII. Most importantly, the Agency found that there is no evidence that any of the actions or decisions of Agency management were motivated by unlawful reasons. It concluded that Complainant failed to establish that any of management's reasons for its actions were pretextual or unworthy of belief and determined that Complainant failed to establish discrimination under either the theory of disparate treatment or unlawful harassment.
The instant appeal followed. Complainant proffers no statement on appeal.
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 EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that appellant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. However, we find that Complainant has not shown that she was subjected to harassment in the form of unwelcome verbal or physical conduct involving her protected classes, or the harassment complained of was based on her statutorily protected classes. Further, Complainant has not shown that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. While Complainant has cited various incidents where Agency management took actions that were either adverse or disruptive to her, we find that Complainant fails to show that these incidents were as a result of unlawful discrimination. To the extent Complainant is alleging disparate treatment with respect to her claims, she has not shown that the Agency's reasons for its actions were a pretext for discrimination.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 27, 2012
__________________
Date
2
0120121597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121597