0120152852
03-11-2016
Jocelyn R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jocelyn R.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120152852
Agency No. EUFY14085
DECISION
On September 3, 2015, Complainant filed an appeal from the Agency's August 4, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
ISSUES PRESENTED
The issue presented is whether Complainant established that the Agency discriminated against her based on age and sex when her second-line supervisor did not intervene to correct harassment against Complainant by a coworker.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Education Research Analyst at the Agency's Isles District Office in Isles District, United Kingdom.
On June 11, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (61) when:
1. Since August 2011, her second-line supervisor (S2) failed to protect Complainant from repeated acts of harassment and bullying by Complainant's co-worker (CW1) who is a female and was less than 40 years old at the time of these events;
2. From August 2012 to April 30, 2014, S2 failed to act on Complainant's repeated requests for his intervention due to CW1's refusal to collaborate and provide Complainant with necessary information to do her job;
3. On November 28, 2012, S2 failed to intervene to stop CW1's obstructive behavior of not informing Complainant of arranged meetings with schools;
4. On August 22, 2013, S2 trivialized Complainant's request for intervention following an altercation with CW1 by stating that they were "acting like middle school girls";
5. On March 24, 2014, S2 failed to take actions to address Complainant's allegations of CW1's professionally damaging "whisper campaign" against Complainant; and
6. On June 10, 2014, Complainant became aware that she would not be participating in a pre-external review visit, and that S2 had authorized CW1 and another coworker to participate instead.
In her testimony, Complainant described numerous instances of alleged harassment by CW1 which she characterized as bullying, such as offensive e-mails and antagonistic behavior during meetings. Complainant also alleged that CW1 attempted to sabotage her ability to do her job by excluding her from meetings, withholding necessary data and information from her, and spreading rumors that Complainant was ineffective at her job and using work time to take online courses. Complainant stated that, as a result of CW1's alleged behavior, a school withdrew its invitation to work with Complainant and she was forced to work extra time to compensate for CW1's lack of cooperation. Complainant conceded that she does not know what CW1's motivation for her behavior was and does not contend that it was discriminatory.
Complainant asserted that she informed S2 about these incidents seeking redress, but alleged that S2 did not take any corrective action against CW1 because of favoritism towards a younger female and because of a patronizing attitude toward females. Complainant alleged that S2 perceives females as the "weaker sex" based on his personal background and an incident in which S2 stated that Complainant and CW1 were "acting like middle school girls" during a meeting which was intended to resolve the conflict between Complainant and CW1. S2 conceded in his statement that he made this comment, but the statements of all three individuals involved, including Complainant, indicate that he apologized shortly after the meeting. Two witnesses provided statements corroborating Complainant's allegations against CW1, although neither witness had seen or heard S2 express any discriminatory animus against females or against individuals over the age of 40.
In his statement, S2 claimed that he had investigated Complainant's respective complaints to him of unprofessional behavior by CW1, but each resulted in a "he said, she said" result that did not warrant taking any corrective action. He stated that he has received complaints about "bullying" from both Complainant and CW1 about each other and has met which each individual privately to discuss professionalism and being respectful to each other, although he has not received any substantiated claims. S2 also disputed Complainant's allegation that CW1's behavior interfered with Complainant's ability to do her job, stating that Complainant's tasks are not dependent on CW1 to be completed.
CW1 provided a statement in which she claimed that she was on the receiving end of unprofessional behavior from Complainant including "abusive" e-mails, angry face-to-face confrontation, and failure to respond to requests for data which only Complainant can access and provide. As evidence, CW1 provided e-mails sent by Complainant to multiple parties in which she referred to CW1 by name in a negative manner and e-mails from CW1 requesting that Complainant provide certain data to which Complainant did not respond. Another witness provided a statement indicating that although he worked with both Complainant and CW1, he was not aware of any harassment or abusive behavior on the part of CW1 toward Complainant.
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 requested a final agency decision on March 20, 2015. The Agency found that Complainant did not establish that discrimination had occurred, concluding that there was no evidence of a discriminatory motive and that the alleged harassment did not rise to the level of severe or pervasive conduct which would constitute a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to process her request for a decision in a timely manner; failed to conduct a professional and competent EEO investigation; knowingly diverted the investigation away from S2; failed to give proper and appropriate relevance to witness testimony; failed to recommend corrective action for S2's discriminatory behavior based on sex; and reached improper conclusions after examining the evidence in the report.
The Agency contends that the delay in processing Complainant's claim should not be a basis for a finding of discrimination. The EEO Investigator provided a complete and impartial factual record which supported a finding of no discrimination even assuming all alleged facts are true, and the investigative report and decision make it clear that S2 was properly identified as the responding management official (RMO). The Agency argues that the decision adequately examined all witness testimony and found no evidence of a discriminatory motive, and that a recommendation of corrective action would be beyond the scope of the investigation and final decision. It also argues that the evidence indicates that the conflict between Complainant and CW1 was not discriminatory but was essentially a personality conflict.
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 Chap. 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
Hostile Work Environment Based on Age and Gender
Complainant alleged that she was subjected to harassment by CW1 on multiple occasions, and that S2 discriminated against Complainant based on her age and gender by failing to intervene or correct CW1's behavior. In order to establish a claim of harassment/hostile work environment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her protected status; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Bridges v. U.S. Postal Serv., EEOC Appeal No. 0120080096 (Sept. 28, 2009). These elements must each be proven by a preponderance of the evidence. Complainant v. Dep't of the Army, EEOC Appeal No. 0120130622 (Aug. 28, 2015). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems Inc., 510 U.S. 17, 22 (1993); Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Complainant is a female over the age of 40, and thus protected against discrimination based on her sex by Title VII and based on her age by the ADEA. The evidence reflects that Complainant sought relief from CW1's alleged behavior by complaining to supervisors, so it can reasonably be concluded that the conduct was unwelcome. Thus, Complainant satisfies the first two elements of a harassment claim.
However, Complainant did not establish by a preponderance of the evidence the third element of her claim: that S2 chose not to discipline CW1 for the alleged acts of harassment based on Complainant's age or sex. Complainant concedes that she does not know what motivated CW1's behavior and does not assert that CW1 acted with a discriminatory motive based on Complainant's age or sex. Complainant's only evidence that S2 acted with a discriminatory motive based on her age is the fact that CW1 is younger than Complainant. Two witnesses who offered statements asserted that they personally believed S2 was motivated by Complainant's age in choosing not to discipline CW1, but neither witness offers any evidence of S2 acting with a discriminatory motive beyond their own personal opinions. Thus it is not clear by a preponderance of the evidence that S2 acted with a discriminatory motive based on Complainant's age.
Similarly, the evidence does not adequately demonstrate that S2 was acting out of a discriminatory motive based on Complainant's sex. Complainant offers as evidence of sex-based discrimination S2's personal background and a meeting in which S2 compared the behavior of Complainant and CW1 to that of "middle school girls." Complainant's speculation about S2's attitude toward women is not evidence of a discriminatory motive and is not substantiated by any evidence in the record. S2 concedes that he uttered the "middle school girls" comment, but his and other witnesses' accounts of the event indicate that he quickly recognized the inappropriate nature of the comment and apologized to Complainant and CW1. This isolated incident is not sufficient to prove by a preponderance of the evidence that S2 acted with a discriminatory intent based on Complainant's sex throughout the period during which Complainant alleges she was subject to harassment.
Complainant also has not established by a preponderance of the evidence that S2's decision not to discipline CW1 had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. 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, 510 U.S. at 21. "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." Id. at 22.
None of the instances of alleged harassment demonstrate conduct that is particularly severe or is physically threatening or humiliating. The record also does not establish by a preponderance of the evidence that CW1's alleged behavior unreasonably interfered with Complainant's work performance. The only evidence of such interference is Complainant's own statement regarding lost work opportunities and having to work extra time, which is directly contradicted by S2 stating that Complainant's work was not dependent on CW1's cooperation to be completed. Complainant does allege several instances of unprofessional conduct by CW1 which may speak to the frequency of the alleged behavior. However, the lack of discriminatory motive and the testimony of witnesses and CW1 indicating that Complainant also engaged in unprofessional conduct tend to support the conclusion that this behavior was a mutual personality conflict rather than unlawful harassment. Thus, the Commission finds that Complainant has not satisfied the fourth element of a claim for harassment because the alleged conduct is not sufficiently severe or pervasive to create a hostile work environment.
Because the Commission finds that Complainant has not established by a preponderance of the evidence that S2 acted with a discriminatory motive and that the alleged conduct was sufficiently severe or pervasive to constitute a hostile work environment, the Commission affirms the Agency's finding of no discrimination. It is therefore unnecessary to analyze the fifth element of a harassment claim to determine whether employer liability exists.
Untimely Issuance of a Decision by the Agency
Complainant contends that the Agency failed to issue a timely final decision in accordance with EEOC regulations. The Commission's regulation found at 29 C.F.R. � 1614.110(b) requires that an agency issue a final decision within 60 days of receiving notification of a request for a final decision. In its decision, the Agency noted that it had received Complainant's request for a final decision on February 6, 2015, but the decision was issued more than 60 days later, on August 4, 2015. In its brief, the Agency concedes that this was untimely and states that the delay was due to internal review and coordination issues. We note that the record reflects that the Agency supplemented the ROI on February 24, 2015, and that Complainant requested a final decision on March 20, 2015. In either instance, the Agency exceeded the 60-day time frame in which to issue a final decision.
We take this opportunity to remind the agency of its obligations under our regulations. EEOC Regulation 29 C.F.R. � 1614.110(b) specifies that when the agency receives a request for an immediate FAD or decides to issue a FAD due to a complainant's failure to request a hearing, it must issue the FAD within 60 days. See, e.g., Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006). Although the Agency failed to issue a timely decision as required by regulation, in this instance, the Commission does not find that the circumstances warrant the imposition of a sanction.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
March 11, 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
01-2015-2852
8
0120152852