0120142448
09-02-2016
Jill M.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jill M.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120142448
Agency No. DOS-F-123-13
DECISION
On June 28, 2014, Complainant filed an appeal from the Agency's May 30, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons stated below, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that she was subjected to discrimination and harassment.
ISSUES PRESENTED
The issues presented in this case are whether Complainant was subjected harassment and discrimination based on her sex, national origin, and religion when she was told that she could not pump breast milk from 1:00 p.m. to 4:00 p.m., and when she was subjected to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Consular Associate at the Agency's U.S. Consulate General facility in Johannesburg, South Africa. She held that position from February 28, 2012 until July 24, 2013. She described her duties as:
In the mornings I worked in [Nonimmigrant Visas] and in the afternoons, I worked on [American Citizen Services]. NIV work involved taking fingerprints for visa applicants and ACS work included performing notarial services, administering oaths, accepting passport applications, and special citizen services.
Complainant maintained that after giving birth to her son, she needed to be able to pump breast milk. She had been diagnosed with Mastitis, an inflammation of the breast tissue. She was told by her doctor that she needed to pump at regular intervals and anytime she started to feel physical pain. Complainant maintained that, after a couple of weeks, S1, her supervisor, told her and a coworker that they were not allowed to leave the unit for any reason between 1 pm and 4 pm. Complainant maintained that she told S1 that she needed to pump milk whenever the need arose. According to Complainant, S1 told her that "you need to leave your problems at home," and that she should pump during her lunch hour. Complainant maintained that since S1 was only her supervisor in the afternoon, she tried to only pump in the morning. Complainant indicated that S1 was very controlling and micromanaging of everything that she did. Complainant asserts that she spoke to her second-line supervisor (S2) and her third-line supervisor (S3) about S1's comments to her and how she was being treated.
Complainant also maintained that there was no established place for her to use her breast pump so she had to move from one unlocked office to another. On July 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her when:
1. because of her sex (female) and status as a parent, she was discriminated against when she was denied the opportunity to pump breast milk during work hours; and
2. because of her sex (female), religion (Muslim), status as a parent, and national origin (Egyptian), she was discriminated against when she was subjected to a hostile work environment characterized by, but not limited to, inappropriate comments and jokes.
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency concluded that Complainant failed to prove that it subjected her to discrimination or harassment as alleged. The Agency found that Complainant did not demonstrate that she was subjected to discrimination because even assuming arguendo that she established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. First, S1 denied telling Complainant and her coworker that they could not leave the ACS unit from 1-4 p.m. According to S1, when one employee had a commitment to attend to, the other employees would cover for their colleague. She also denied telling Complainant to "leave her problems at home" when informed by Complainant that she needed to pump her breast milk when the need arose. She stated that Complainant was able to pump breast milk "whenever she wished," and their Consular Associate, S3, could attest to this.
S1 also indicated that she never made derogatory comments about Complainant's national origin or religion. S1 maintained that Complainant once asked about a mosque that was in a dangerous part of town, so she made a comment about how dangerous it was. S1 also indicated that she asked Complainant when her mother was coming to the office because employees frequently brought their family to the office when they visited. Complainant however did not do so, so S1 asked if Complainant's mother was veiled and asked if she was ashamed to introduce her to them. S1 stated that she in no way made derogatory comments about Complainant's religion or national origin and she did not disparage Muslims in general.
Complainant's coworker testified that she did not recall a meeting with Complainant and S1 where she and Complainant were told that they could not leave the ACS unit from 1-4 p.m., for any reason. She stated that it was common knowledge that all personnel are to be present during ACS core working hours which are 1-4 p.m. She further indicated that she did not recall a meeting where Complainant told S1 she needed to pump breast milk whenever the need arose and did not recall hearing S1 say, "you need to leave your problems at home." Finally, the coworker stated that it did not appear that S1 treated Complainant differently after the Complainant had a child.
S2 also indicated that he did not recall Complainant requesting time to pump milk and that if she had, he would not have had a problem with it. S2 acknowledged that at a going away party, he mentioned that he was privileged to work with beautiful women. He indicated that while this was unprofessional, he thought it was appropriate to say because it was not during work hours. Moreover he maintained that the comment was not personally directed at Complainant and it was not meant to be derogatory but was said at a celebratory event.
Complainant acknowledged that S1 never told her that she had to stop nursing altogether, but she complained whenever Complainant actually pumped, and made it difficult for her to do so. Complainant maintained that S1 said that she did not understand why Complainant was making such a big fuss about nursing. S1 indicated, however, that she had also nursed her daughter so the comment about nursing was made to show that she knew what it was like. The Agency found that there was a serious question as to whether Complainant's ability to pump breast milk was as limited as she alleged.
Assuming, for the sake of discussion, that there was some significant interference with Complainant's ability to pump, the Agency maintained that there were legitimate, non-discriminatory reasons, i.e., the heavy afternoon workload and the lack of additional staff. The Agency found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination. Finally, to the extent Complainant alleged that she was not provided reasonable breaks in violation of the Fair Labor Standards Act (FLSA), the Agency noted that violations of FLSA are outside of the EEOC jurisdiction. Additionally the Agency noted that discrimination resulting from an individual's status as a parent was not a covered basis under the laws enforced by the EEOC. Finally, the Agency indicated that Complainant had not made a claim based on disability.
With regard to Complainant's claim that she was subjected to a hostile work environment, the Agency determined that the statements made in front of Complainant which included: S2 announcing that he liked working with beautiful women; S1 indicating that a mosque was located in a dangerous place; that nursing was not a big deal; and asking whether Complainant's mother was veiled and whether Complainant was embarrassed to bring her mother to the office, were unprofessional and crass. The Agency indicated that these comments were one time incidents and were not severe or pervasive enough to establish a hostile work environment. Also, Complainant indicated that she withdrew from a job interview because she learned that S1 was on the panel. The Agency maintained that Complainant voluntarily withdrew from this selection process. Additionally, the Agency maintained that Complainant's contention about her supervisor criticizing and scrutinizing her work were also without merit as those interactions were normal workplace interactions and were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
Neither the Complainant nor the Agency submitted contentions on appeal.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first 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. McDonnell Douglas. 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Based on a thorough review of the record, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, with regard to issue no. 1, the Agency maintained that Complainant was never denied the opportunity to pump breast milk during work hours. To the extent that S1 discouraged employees from leaving the area in the afternoon, the record indicates that her actions were attributable to the busy work schedule not Complainant's gender, religion or need to pump milk. Even Complainant stated that, "[W]e had incredibly busy workloads with very little support from the ACS Chief at the time." ROI p. 134. Complainant also acknowledged that she was not prevented from pumping but that she felt S1 would disapprove.
Complainant's coworker indicated that she did not recall S1 complaining every time Complainant had to pump breast milk. She stated that it was "not every time, mostly when we were very busy with applicants S1 would raise this as we were short-staffed and required all hands on deck at our busy times." Regarding the pressures of work in the office, Complainant noted that S1 "made her feel on edge at times because they were always short staffed and there was always too much work with no time and resources." We find that Complainant has not presented any evidence which indicates that she was in fact prevented from pumping breast milk. We find that while Complainant may have felt pressured not to pump milk whenever she needed to there is no evidence in the record that she was prohibited from doing so by S1 or anyone else in management even during the busy times.2 Moreover, we find no persuasive evidence that discriminatory animus played in role in these matters.
Harassment
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, 632 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).
Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
The Commission finds that Complainant has not shown she was subjected to a hostile work environment. To a large extent, we find that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. S1 acknowledged that she routinely corrected Complainant and her coworker, but it was related to the work and was not personal. We find that other comments, which the Agency defined as unprofessional and crass, were not sufficiently severe or pervasive enough to create a hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 31 (1998).
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to harassment or discrimination on the bases of her sex, national origin, and/or religion.
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
__9/2/16________________
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 The Commission has held that a female employee's status as a nursing mother is protected under the Pregnancy Discrimination Act (Pub. L. 95-955) (hereafter PDA). See O'Brien v. National Security Agency, EEOC Appeal No. 01951902 (May 27, 1997). The PDA requires that an Agency must treat women affected by pregnancy, childbirth, or related medical conditions the same, for all employment related purposes, as other persons not so affected but similar in their ability or inability to do work. 42 U.S.C. 2000e(k) (1994).
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