0120152275
12-19-2017
Joanna V.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joanna V.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120152275
Hearing No. 570-2012-01121X
Agency No. DIA201100055
DECISION
On July 1, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 1, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist at the Agency's Defense Cover Office facility in Washington DC.
On August 31, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On September 23, 2010, Complainant's duty location changed from Maryland to Washington DC;
2. On October 15, 2010, Complainant's second-level Supervisor2 (S2) issued her a letter placing her on a 90-day detail, effective October 1, 2010, to a non-supervisory billet at the Defense Intelligence Analysis Center (DIAC), Washington, DC, not to exceed January 31, 2011;
3. On November 17, 2010, Complainant received a poor performance appraisal;
4. On January 4, 2011, S2 extended her detail in the non-supervisory position for an additional 30 days;
5. On or about the first week in June 2011, Complainant received notification from her immediate supervisor (S1) that S2 had disapproved her local travel claims;
6. Complainant was permanently reassigned to a non-supervisory position effective June 5, 2011, and her job series changed from an 0505 supervisory Financial Manager to an 0501 nonsupervisory Financial Specialist;
7. On September 21, 2011, Complainant received her performance appraisal for the period October 2010 - July 31, 2011, which she believes was unfairly low and contained unwarranted criticism and inaccurate information; and
8. From June 2010, Complainant has been subjected to ongoing harassment;
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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 10, 2013, motion for a decision without a hearing and issued a decision without a hearing on May 21, 2015. Specifically, the AJ found that S2 articulated legitimate nondiscriminatory reasons for his actions and that Complainant failed to establish that such reasons were a pretext for retaliation. The AJ further found that Complainant failed to establish that any of the incidents of harassment were grounded in a retaliatory motive. 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.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination.
With regards to claims 1, 2, & 4, S2 averred that he had received complaints from a number of Complainant's subordinates alleging that Complainant had promised jobs and/or promotions to various individuals. See Report of Investigation (ROI) Enclosure, pp. 151-52, 159. S2 further averred that:
I took that information and then referred it to our DIA IG Office because of the potential for criminal activity. Based upon the level of hate and discontent in her division and because of the activity that was solicited that I referred to the IG, I pulled her out of her supervisory position. . . . I cannot just allow her to stay in that position unless we get some resolution on [the internal investigation]. But secondly and just as important for me, I call it like a cooling off period or something to try to remove her from this hostile work environment that she had created and this sense of distrust between her and her work force hoping that this would during the 90 days we can kind of like work over this somehow.
Id., pp. 152-52, 164.
With regard specifically to claim 4, S2 averred that he extended the detail another 30 days because he had not heard from IG whether the investigation against Complainant had been completed. See id., p. 171.
With regard to claim 3, Complainant's first level Supervisor (S1) and rater and reviewer of her appraisal averred that Complainant's November 2010 appraisal:
[C]ertainly was not a poor performance appraisal. It was a fully successful performance appraisal. . . . She just felt like the score was too low. She felt like she was an excellent employee. I rated her as a fully successful employee. And my reasons behind my rating were obviously communication problems, the mismanagement, and the lack of leadership that occurred after she became the division chief.
Id., pp. 92-3.
With regard to claim 5, S2 denied Complainant's allegation, stating "Her allegation is not a true statement." Id., p. 148. The record shows, and Complainant admits, that her travel expenses were reimbursed on or about August 15, 2011. See ROI, Exhibit F-28.
With regard to claim 6, S2 averred that Complainant was removed from her supervisory duties because of "trust issues," stating that "I did not believe it would be conducive to a good leadership environment to put her back into it because it was evident that the work force did not trust her." Id., p 172. With regard to claim 7, Complainant's 2011 performance appraisal, S2 averred that Complainant:
[W]as a minimally successful based upon her performance during that time frame, which I went back and painfully with her just said that she did not perform at the level of a 15 and specifically mentioned the incidents which were involved. Number one, she just failed to accurately prepare and to keep cognizance over the whole project we were working to present. And that, number two, she doesn't do her own work. . . . What she does is she will send an E-mail. She will task things out, have people come, put it all together, and then give it to her. And that's it. She goes, here is the product. And she is, once again, not providing any original thought to the piece. And it is obvious that a bunch of it is just cut and paste. It is poorly written, not structured very well. And she considered that what a 15 does. And I kept telling her, no, that's not what a 15 does. You have got to be able to assimilate information, do your own research, and then put that into a concise, accurate, compelling document.
Id., pp. 188-89.
The Agency having articulated legitimate non-discriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence that their articulated reasons were a mere pretext or otherwise show discrimination occurred. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. Following a review of the record we find that Complainant has failed to meet this burden. While Complainant disagrees with the Agency's actions, and/or the reasons provided by Agency officials, she has not shown that Agency officials harbored any animus towards her based on her protected EEO activity or that the actions themselves were based on her protected activity. We therefore discern no basis to disturb the AJ's findings.
Harassment.
We note initially that, to the extent that Complainant is alleging that she was subjected to retaliatory harassment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant may not include the incidents described in claims 1 through 7 as part of her harassment claim. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency in claims 1 through 7 were motivated by retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Complainant's claim of retaliatory harassment thus rests on these remaining allegations: on various occasions in June/July/August 2010, Complainant's rating and reviewing officials (S1 and C) solicited negative statements from subordinates about Complainant's performance and conduct; on September 1, 2010, S1 informed Complainant that five employees had made allegations of serious illegal conduct which would be investigated by the Inspector General (IG) and EEO Offices; on September 20, 2010 Complainant learned that headquarters had appropriated her FY 2010 support billets; on September 23, 2010, S2 informed Complainant she was a "bad leader," that she had failed as a leader, and that she would attend a resources meeting with him on September 24, 2010; on various occasions (November/December 2010 and February 14, 2011) S2 directed Complainant to stay away from Financial Management Division (FMD) offices and not to talk to FMD personnel; on February 17, 2011, Complainant was directed to pack her office and move over a holiday weekend; on April 14, 2011, S2 informed Complainant she would "never" have anyone working for/under her, her role is clearly defined in programming; on April 14, 2011, S2 told Complainant to "stay away from FMD" which resulted in her not having a working group for a special project; on May 19, 2011, S2 made threatening comments stating Complainant "lacks critical thinking skills/original thought and that she is not performing at a Pay Band 5/GS-15 level, that she is performing at a GS-13 [level] and maybe she needs to be a GS-13"; and on June 13, 2011, S2 issued Complainant a performance advisory letter stating her performance was below the Pay Band 5 level.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record, we agree with the AJ's finding that Complainant failed to establish that the alleged actions were either based on or involved her prior EEO activity. We further find that the actions were not sufficiently severe or pervasive to alter the conditions of Complainant's employment. We therefore discern no basis to disturb the AJ's findings.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that reprisal occurred. Nor had Complainant shown the presence of a material issue of fact. We therefore AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
December 19, 2017
__________________
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 We note that in the Report of Investigation, S2 describes himself, and is described in the Report, as Complainant's third-level Supervisor. Complainant and the AJ's Decision, however, describe him as her second-level Supervisor.
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