0120132357
01-08-2016
Jessica E.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jessica E.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.
Appeal No. 0120132357
Hearing No. 490-2008-00127X
Agency No. AMS-2007-00753
DECISION
Complainant timely filed an appeal from the Agency's 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. 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 order.
ISSUE PRESENTED
The issue presented is whether substantial evidence of record supports the EEOC Administrative Judge's (AJ's) decision that Complainant did not establish that the Agency discriminated against her in reprisal for her prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a seasonal employee, and worked as an Agricultural Commodity Aide and/or Standards Assembler, GS-3, Cotton and Tobacco Programs (CTP), Standards and Engineering (SE) Branch, in Memphis, Tennessee. Complainant's duties included making cotton sample biscuits by forming a piece of cotton into a smooth face and fitting it into a sample tray. This entailed using a hand-held shaping tool and tweezers to shape and form an accurate physical form of cotton for an official grade universal standard box.
On February 16, 2007, the Supervisory Marketing Specialist (SMS) returned for minor correction a box that Complainant had completed. Complainant thought there was nothing wrong with this box and felt that the SMS was "nit-picking" her work. Complainant contacted the Agency's EEO Office (also referred as the Civil Rights Office) after work on February 16, 2007. Complainant did not believe that the Agency had subjected her to discrimination on a protected basis at that time, but instead only wished to complain about her working conditions. On February 22, 2007, an EEO Counselor with the Agency contacted Complainant. At that time, Complainant complained about her working conditions, but did not complain about discrimination on any protected basis.
On July 24, 2007, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected her to discrimination and harassment in reprisal for her February 2007 EEO contact when:
1. on January 20, 2007, she did not receive a certificate of training after completing No Fear Act training;
2. on February 23, 2007, management failed to resolve a hostile/offensive environment involving her and her coworkers;
3. on February 23, 2007, the Associate Deputy Administrator sent an e-mail to the Chief of Standardization and Engineering exhibiting anger because Complainant had contacted the Office of Civil Rights, and asked that her performance and conduct be investigated;
4. on March 5, 2007, she received a low-volume letter from management;
5. on March 8, 2007, she received a Letter of Admonishment from the Associate Deputy Administrator in the Cotton Program;
6. on March 29, 2007, she was admonished publicly by the Chief of the Standards and Engineering Branch;
7. on June 18, 2007, she received a letter from the Deputy Administrator ordering her to cease further dialogue and correspondence;
8. on August 2, 2007, she received a satisfactory appraisal that she disagreed with, and was denied a certificate or award of money;
9. on August 7, 2007, she discovered Agency minutes that were false and libelous against her;
10. on July 24, 2008, she was not selected for a promotion;
11. on an unspecified date, she discovered that unjustified negative references were made about her by Agency personnel in a compliance report;
12. on an unspecified date, she received an adverse performance rating and appraisal for 2007;
13. on November 8, 2008, the Agency interfered with her right to sick leave;
14. on an unspecified date, she received an adverse performance rating for the 2008/2009 grading season and a probation letter;
15. on an unspecified date, she was denied participation in a one-day June conference;
16. on June 28, 2009, she received an unfair 2009 performance appraisal;
17. on various dates in 2009, she was denied official leave to act as a representative in another EEOC matter and was subjected to increased surveillance for acting as a representative in another EEOC matter; and
18. on various dates in 2010, she was denied official leave to work on her EEOC case.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. 2
The AJ held a hearing on January 14-15, 2013, and on March 19-20, 2013. The AJ issued a bench decision on April 2, 2013, in the Agency's favor. 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.
AJ's Bench Decision
With regard to claim 1, the AJ found that no seasonal employee received a certificate of completion, and that Complainant's claim predated her EEO contact. Regarding claims 2 and 3, the AJ noted that in February 2007 Complainant sent an e-mail to the SMS, complaining that one of her standard boxes had been returned to her when it needed only minor corrections. The AJ noted that Complainant testified that she considered herself an expert in making standard boxes and that she was unhappy that her box was returned. The AJ found that on February 15, 2007, Complainant met with the SMS to discuss what she believed was the "nit-picking" of her work, and favoritism by management towards their friends. The AJ then noted that on February 16, 2007, Complainant contacted the Agency's Civil Rights Office by telephone, leaving a message. When no one immediately returned Complainant's call, she sent an e-mail to the "EOE/CR counselor" on February 19, 2007, complaining about the falsification of performance appraisals and retaliation for threatening to quit or to expose government waste. The AJ found that nothing in Complainant's e-mail involved any allegation of discrimination on any protected basis. The AJ noted that an EEO Counselor with the Agency's Civil Rights Office spoke with Complainant on February 22, 2007, about her e-mail. The AJ indicated that Complainant told the Agency's Civil Rights Office that she was not filing a complaint of discrimination. The AJ further noted that the EEO Counselor told Complainant that the issues she had raised were not about discrimination, but instead concerned program issues.
The AJ additionally indicated that on February 23, 2007, Complainant was involved in a verbal exchange with a coworker in the ladies restroom. Complainant believed that this coworker and the other two women in the restroom were talking about her and her EEO contact. The AJ found no evidence however to support Complainant's assertions regarding the matter in the restroom. The AJ noted that both the SMS and the Assistant Branch Chief took statements from witnesses, and they both credibly testified that Complainant never reported the matter herself, so they considered the matter resolved. The AJ found no evidence that management's handling of the matter was related to Complainant's contact with the Agency's EEO Office. The AJ further found no evidence to indicate that management was irritated with Complainant's EEO contact.
With regard to claim 4, the AJ noted that Complainant admitted during the hearing that she did not turn in the required number of boxes on the day in question and acknowledged that other employees got low-volume letters as well. As for claim 5, the AJ found no evidence that the Associate Deputy Administrator actually admonished Complainant. The AJ also found no evidence to support Complainant's accusation that the Chief for Standards and Engineering Branch admonished her as per claim 6. Regarding claim 7, the AJ noted that nothing in the language of the letter showed that it was motivated by retaliation or that the Deputy Administrator attempted to chill Complainant's right to participate in the EEO process. With respect to claim 8, the AJ indicated that Complainant received an overall fully successful performance appraisal, and received the highest score possible on all elements except the "Maintains Quality Leafing Production" element. The AJ found that no assembler was fully successful on that element, and that no employee received a certificate or monetary award that year. Regarding claim 9, the AJ found nothing to support Complainant's allegations that the minutes of the March 8, 2007, meeting contained false statements about her.
With regard to claim 10, AJ found that management articulated legitimate, nondiscriminatory reasons for Complainant's nonselection, namely, that Complainant was not rated as highly as the other selectees because she did not have performance reviews in 2005, 2006, and 2007, and also did not perform well during the interview. The AJ noted that Complainant was not rated in those years because she was working in Quality Assurance, not in Memphis Classing. With respect to claim 13, the AJ found that Complainant did not establish that the Agency refused to pay her 4.75 hours of sick leave in reprisal for her prior protected EEO Activity as alleged. The AJ found that Complainant did not refute the Agency's explanation that she was paid for 8 hours and that employees do not get paid for sick leave taken on holidays. The AJ also found no evidence that management was motivated by retaliatory animus with regard to claim 14. The AJ indicated that Complainant admitted during her deposition that she was not the only employee who received such a probation letter.
Regarding claim 15, the AJ noted that the SMS testified that the two top performing seasonal standard assemblers worked the conference in 2009. The AJ indicated that, although Complainant received a fully successful rating, she was not one of the top performers. As for claim 16, the AJ found no evidence that the Agency was motivated by discriminatory animus with regard to her 2009 appraisal. In this regard, the AJ noted that testimony from a number of witnesses showed that Complainant frequently watched her coworkers instead of focusing on her own work. As to claim 17, the AJ noted that when Complainant arrived at the facility to serve as the EEO representative, her identification badge had not been re-activated, and she failed to state the nature of her business to the receptionist to an appropriate manner. The AJ also noted that Complainant experienced only an insignificant delay in payment for the official time she used for that representation. Lastly, with respect to claim 18, the AJ found that the Agency provided Complainant with a total of three and one-half working days of official time, which was reasonable.
In sum, the AJ found no evidence that the Agency took any action against Complainant based on her protected EEO activity. The AJ found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. The AJ noted that on some occasions, Complainant admitted that the discriminatory event was not based on retaliation; and at other times, testified that other employees were treated the same as her.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal. 3 The Agency requests that we affirm its final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Disparate Treatment and Hostile Work Environment
A claim of a disparate treatment generally is examined under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
To establish a claim of discriminatory harassment, Complainant must show that: (1) she is a member of the 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 his 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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 (Mar. 8, 1994).
Upon review, we find substantial evidence in the record supports the AJ's determination that Complainant did not establish that the Agency subjected her to disparate treatment discrimination and/or a hostile work environment based on reprisal for her prior protected EEO activity. We find the record supports the AJ's finding that Complainant did not show that any of the Agency's actions were motivated by discriminatory animus. Like the AJ, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretext for discrimination. In so finding, we note that Complainant admitted through her statements and testimony that many of the instant alleged discriminatory matters were not actually motivated by retaliation. See Complainant's November 6, 2008, Deposition, pages 108, 134-35, 139, and 200. We additionally note that Complainant further testified that she was not treated differently from other employees with respect to many of her claims. See id., pages 138-39, 140; Hr'g Tr., March 19, 2013, Vol. I, at page 329. We find no reason to disturb the AJ's credibility findings here, especially in light of Complainant's own testimony that certain allegations were not actually motivated my discrimination. Of particular note, Complainant testified that she had not been subjected to discrimination with regard to claims 1, 3, 7, 8, and 14. Complainant also testified that no other employee received sick leave because it was a holiday (claim 13), that she never actually received a Letter of Admonishment (claim 5), and that her badge had not been re-activated due to her seasonal employee status (claim 17). There is simply nothing in the record to reflect that management was motivated by discriminatory animus with respect to any of the claims alleged. Further, the record does not reflect that Complainant's work atmosphere and the incidents she complained of were so severe or pervasive such that the conditions of her employment constituted a hostile work environment.
With regard to claim 18, we note that EEOC Regulation 29 C.F.R. � 1614.605(b) provides, in relevant part, that a complainant "shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information." Like the AJ, we find that a total of three and one-half working days of official time constituted a reasonable amount of time.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we substantial evidence of record supports the Administrative Judge's decision that Complainant did not establish that the Agency discriminated against her in reprisal for her prior protected EEO activity as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
January 8, 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 ROI only encompassed claims 1-9. Before holding the hearing, the AJ granted Complainant's various motions to amend claims 10-18, on September 16, 2008, November 16, 2008, December 22, 2008, March 5, 2009, April 10, 2009, May 7, 2009, October 26, 2009, July 31, 2010, and August 24, 2010.
3 On February 18, 2014, Complainant filed a subsequent appeal with the Commission from an Agency final decision (Agency No. AMS-2012-00417), docketed as EEOC Appeal No. 0120142786. In briefs filed with the Commission dated February 18, 2014, and April 7, 2014, Complainant requests that the instant appeal be consolidated with the pending EEOC Appeal No. 0120142786. In addition, Complainant specifically addressed the instant April 2, 2013, AJ decision. We decline to address Complainant's assertions in her subsequent briefs with regard to the instant AJ's decision. 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. We also exercise our discretion and decline to consolidate Complainant's appeals. See 29 C.F.R. �1614.606.
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