0120123039
10-11-2012
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. 0120123039
Hearing No. 560-2010-00314X
Agency No. ARFTLEAV09APR01599
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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Officer, GS-0301-11, for the Secretary to the General Staff (SGS) at the Agency's Combined Arms Command in Fort Leavenworth, Kansas. On October 16, 2009, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of race (African-American), sex (female), religion (Christian), color (Black), disability (Stress), age (51), and reprisal for prior protected EEO activity under Title VII when: 1) On December 8, 2008 she was informed that her rating period was being extended for 120 days; 2) On April 6, 2009, she reported that she had been assaulted and management took no action; 3) Between April 21 and October 16, 2009, management accused her of being away from her desk for extended periods of time; 4) On or about May 11, 2009, management asked her co-workers to write statements against her; 5) On or about May 11, 2009, she was informed by management that she would no longer manage correspondence flow and distribution within the Secretary General Staff (SGS) office; 6) On July 21, 2009, she was suspended for one day after receiving a Notice of Proposed Suspension on April 21, 2009 and a Notice of Decision on July 20, 2009; 7) On or about October 20, 2009, her work area was relocated without prior notice and equipment issued to her was confiscated; 8) Between April 21 and October 26, 2009, she was not permitted to work overtime; and 9) On or about October 26, 2009, she was placed on leave restriction.
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 the AJ dismissed Complainant's complaint on June 29, 2011, due to Complainant's failure to prosecute her case (failing to respond to Agency's Discovery Requests, Agency's Motion to Compel and AJ's Show Cause Order) and remanded it to the Agency for a final decision. 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 the extension of Complainant's rating period, Complainant's supervisor explained that it was an oversight on his part not to provide the initial counseling as required and indicated he was new to supervising civilians and did not realize at the time he had failed to conduct this counseling. He further explained that after Complainant notified him of the counseling requirement, he met with a representative of the civilian personnel office. He was advised that he should extend the rating period 120 days in order to provide for a proper evaluation period. Ultimately Complainant received a good rating and she has shown no harm was done by extending the rating period. Regarding the suspension, Complainant's second-level supervisor explained that he had proposed suspending Complainant based on multiple infractions including being (AWOL), failure to follow orders, conduct unbecoming a federal employee, and disrespect toward a supervisor. He noted that Complainant failed to respond to those charges before the Chief of Staff upheld the suspension. With respect to Complainant's claim of being assaulted, the Agency determined after investigation that there was no evidence to support that an assault actually took place. Concerning Complainant's claims that she was accused of being away from her desk for extended periods of time and management requested co-worker statements against her, the Agency noted that when a supervisor observes a subordinate being absent from her place of duty for extended periods of time and no reason has been provided as to where she could be, it is reasonable for the supervisor to question the employee about the absences. Complainant's supervisor personally observed these absences and when Complainant denied being absent, Complainant's supervisor asked others in the office to provide documentation to support their observations of her absence. The Agency maintained that this was a reasonable request to support his contentions since Complainant was denying her actions. There is no evidence that Complainant's supervisor asked others in the office to write false statements or write "statements against" Complainant, as she alleged.
With respect to Complainant not being allowed to continue managing correspondence flow and distribution, Complainant's supervisors stated that Complainant never officially held the responsibility of managing correspondence flow and distribution but rather was helping out her immediate supervisor in the beginning, when he was new to the organization and process. Complainant's immediate supervisor noted that Complainant took advantage of that short-term role to the point where her co-workers were complaining that she was improperly exerting management authority over them.
The Agency maintained that Complainant's claim that she had no prior notice of the office move is not supported by the record. Management noted that there were several events in which the upcoming office move was discussed and Complainant was present for these discussions. There were at least 10 different occasions when the office move was discussed in Complainant's presence. Also, on the day of the move, Complainant called in with a personal
emergency and was absent for the move. Due to her absence, Complainant's co-workers were required to pack up her belongings and move them for her. With respect to Complainant's claim that items previously issued to her had been confiscated, management determined that this is also unfounded. Complainant failed to describe what issued items were confiscated. Further, the only item that had ever been "issued" to Complainant was her computer and this was not confiscated during the move. Regarding Complainant's claim that she was denied overtime, Complainant's immediate supervisor stated that Complainant had never requested to work overtime. Complainant's second-line supervisor added that during this time frame Complainant rarely worked a full day. Further, Complainant had made it clear to management, that due to her family situation, she could not work past the end of her duty day. With respect to Complainant being placed on leave restriction, the Agency found that Complainant was absent on several occasions during a short period of time and failed to follow the established procedures on several of those occasions. Complainant knew the proper leave requesting procedures because she had followed them correctly on some occasions. Due to her repeated failure to follow the procedures on many occasions and/or to provide appropriate justification for her absences, management determined the need to place Complainant on leave restriction. The Agency 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 the ADEA, Rehabilitation Act or Title VII. Most importantly, there is no evidence that any of the actions or decisions of Agency management were motivated by unlawful reasons. Complainant failed to establish that any of management's reasons for its actions were pretextual or unworthy of belief. Complainant failed to establish discrimination under either the theory of disparate treatment or unlawful harassment. 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, and even assuming Complainant is a person with a disability, 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
October 11, 2012
__________________
Date
2
0120121597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123039