0120140552
02-05-2016
Karolyn E.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karolyn E.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120140552
Hearing No. 531-2012-00308X
Agency No. 63-2011-00315
DECISION
On November 29, 2013, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 28, 2013, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary (Office Assistant), GS-5, at the Agency's U.S. Census Bureau, Geography Division, Independent Testing and Validation Branch in Suitland, Maryland.
On October 12, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her religion (Baptist - Minister), age (65 & 66), and reprisal for prior protected EEO activity by subjecting her to a hostile work environment by:
1. Giving her an overall Level 3 performance rating for Fiscal Year 2011;2
2. Her Branch Chief who is her first line supervisor (S1) started to act [around June 2011] as if Complainant had "done or said something to her" and the employees in the office have taken on S1's attitude;
3. She is constantly monitored, citing that:
a. certain employees watch her "comings and goings," while other employees have been assigned to monitor her work habits;
b. other employees have been assigned to watch her computer screen and report back to S1;
c. Co-worker 1, an Information Technology (IT) Specialist, GS-13, in her Branch, was assigned to come over to her desk and talk to her as a set up to "label [her] as a person given to talking and not working, but given to idleness;"
d. around August 17, 2011, S1 walked up to Complainant's desk and pretended to carry on a conversation regarding work to ensure that she was in fact working, and checked out her computer screen;
e. on August 18, 2011, as Complainant was working, her second line supervisor (S2) was standing outside her work station listing to whether her telephone conversation was personal;
4. Around August 8, 2011, Co-worker 2, a Cartographer, GS-12, in her Branch, referred to her as being "idle;"
5. On October 7, 2011, Co-worker 3, a Cartographer, GS-12, in her Branch, turned Complainant's chair to make it look as if she was gone for the day and then locked Complainant out of the workstation that they share. After doing so, Co-worker 1 passed Complainant in the hallway and looked at her and smiled;
6. The Agency recently took away a temporary assignment without explanation; and
7. Despite recently applying for an Information Technology Specialist position and qualifying at the GS-7 level, the Agency did not select her for the position.
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 hearing but the AJ denied the hearing as sanction for failing to comply (or respond) to orders to submit a prehearing statement and show cause why she did not do so. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
After Complainant filed her complaint, the Agency issued her a letter entitled "Notice of Partial Acceptance for Investigation," accepting her complaint, except for dismissing the portion of issue 1 of receiving annual Level 3 performance ratings prior to Fiscal Year 2011. Citing 29 C.F.R. � 1614.107(a)(2), the Agency found that Complainant failed to timely initiate EEO counseling. It reasoned that she initiated EEO counseling on July 26, 2011, beyond the 45 calendar day time limit.
After Complainant requested a hearing, the AJ issued the parties an Acknowledgment and Order in June 2012, directing in part that if Complainant failed to oppose the dismissal of a claim during the investigative process pursuant to 29 C.F.R. � 1614.107(a), the opportunity to have the dismissal reviewed by the AJ will be waived. There is no indication in the record that she did so. Thereafter, on September 3, 2013, the AJ issued a Prehearing Memorandum and Order writing that the parties agreed, in relevant part, that issue 1 regarded Complainant's overall Level 3 performance rating for Fiscal Year 2011.
S1 explained that Complainant did not receive a higher rating because of her performance in the area of document management, a critical element. She explained that Complainant rarely timely kept up with her filing duties, letting documents pile up without filing them in the office file cabinets, that she typically encountered an issue each cycle while performing computer tasks related to creating the Branch Leave Calendar, the Branch Sign-in Book, the Branch Supply List, and responding to front office coverage requests, and regarding time and attendance, almost every pay period there was some error with her inputs into the computer. S1 submitted documentation of some of Complainant's errors. Report of Investigation (ROI), Exh. 22.
Regarding issues 2 - 4, those involved denied Complainant's allegations. For example, S1 denied acting as if Complainant had done or said something to her, stating she did not change her attitude toward Complainant, nor observe others doing so. S1 wrote that she never monitored, either formally or informally, Complainant's work habits, phone conversations, or "coming and going," never formally or informally requested or assigned anyone else to do so, never received information or a complaint from anyone concerning Complainant's work habits, phone conversations, or "coming and going," and never discussed with or counseled Complainant or disciplined her concerning these things. The statements of others involved corroborated and were consistent with S1's statement. For example, Co-worker 1 stated that she never monitored Complainant and S1 never asked her to do so. Co-worker 1 wrote she had no reason to monitor Complainant, and never tried to engage her in extended conversation to make it look as if she was not working or incompetent. S2 stated that he never tried to monitor Complainant, and sometimes he occasionally stopped in the hall nearby waiting for S1 or to read email on his smart phone. Co-worker 2 indicated that he never said or suggested that Complainant was idle, and did not know where Complainant got this idea. No one supported Complainant's account of what occurred.
On March 3, 2010 and September 7, 2011, prior to the events in issue 5, S1 sent emails to Branch staff asking that the last person who leaves for the day lock their POD door, and that everyone keep their POD key on their person. ROI, Exh. 25. Co-worker 3 acknowledged that he locked their office POD. He explained that he was on the way to the gym, and did not lock the POD to purposely lock out Complainant. Complainant gained access to the POD within minutes of being locked out.
Regarding issue 6, Complainant's team leader explained that Complainant was assigned the task of retrieving certain information to load into training and reporting systems, and the work ran out. ROI, Exh. 14, at 4.
On issue 7, Complainant alleged that in late September or early October 2011, she learned that a co-worker received a promotion to IT Specialist, GS-7. ROI, Exh. 8, at 5. She stated she heard the co-worker receiving congratulations. The record reflects that the co-worker did not receive a promotion. The record does not reflect such a promotion was in the offing around that time in the Branch.
In its FAD, the Agency found that Complainant failed to timely initiate EEO counseling on Level 3 performance ratings prior to FY 2011, and that issue 7 failed to state a claim. It found no discrimination on issues 1 through 6. It based this, in part, on the finding that incidents did not occur as alleged, the Level 3 rating was warranted, Co-worker 3 did not lock Complainant out with malice, and the temporary assignment ran out.
On appeal, Complainant argues under the continuing violation rule, she timely initiated EEO counseling on Level 3 performance ratings prior to FY 2011. She argues that she was harassed.
In opposition to the appeal, the Agency asks that the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As an initial matter, for the same reason cited by the AJ, we find that the AJ properly dismissed Complainant's request for a hearing and remanded her complaint to the Agency to issue a FAD.
We find that the issue of Level 3 performance ratings prior to FY 2011 is not before us. The Agency dismissed this claim for failure to timely initiate EEO counseling. Complainant waived challenging the dismissal during the hearing stage both when she did not contest this following the AJ's Acknowledgment and Order, and later agreed at a prehearing conference that issue 1 regarded her Level 3 performance rating for Fiscal Year 2011 (not inclusive of the prior ones).
The Agency investigated issue 7, and there is sufficient information in the record to make a determination on whether discrimination occurred. For this reason, we will assume without finding that issue 7 states a claim.
To prevail on her disparate treatment claims, Complainant must satisfy 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 he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment a 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 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, 682 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). 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 at 6 (Mar. 8, 1994).
For purposes of analysis, we will assume without finding that Complainant established prima facie cases of race, religion and reprisal discrimination.
Regarding issue 1, the Agency explained that Complainant's Level 3 rating was warranted by her performance. Regarding issues 2 - 4, the Agency explained that these events did not occur as alleged, and this is supported by the record. Regarding issue 5, the Agency explained that Co-worker 3 did not lock Complainant out with malice, and Complainant was able to gain access to her POD minutes later. On issue 6, the Agency explained that Complainant's temporary project ran out. On issue 7, the Agency explained that there was no Branch IT Specialist, GS-7, promotion around September or October 2011, and none was in the offing then.
Complainant has failed to prove pretext, or that harassment occurred.
The FAD is AFFIRMED.
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
February 5, 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 Complainant also alleged that prior Level 3 performance ratings she received were discriminatory. This matter is not before us, as will be explained below.
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