0120113905
02-03-2012
Lamyra J. Hogan-Satcher, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Lamyra J. Hogan-Satcher,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120113905
Agency No. P20100650
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s July 15, 2011 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a GS-12 Assistant Food Service Administrator (AFSA) at the
Agency’s Federal Correctional Complex in Beaumont, Texas. On August
16, 2010, Complainant filed a formal complaint alleging that the Agency
subjected her to hostile workplace discrimination on the bases of race
(African-American), sex (female), and reprisal for prior protected
EEO activity under Title VII when: she was made to endure involuntary
changes to her work schedule, verbal threats, unwarranted comments,
and preclusion from exercising her supervisory authority.
The record reveals that the Agency conducted a comprehensive Food
Service Program Review at the Beaumont Complex in January 2008. In a
report dated February 15, 2008, the Agency advised the Complex Warden
that the Food Service operation was deficient. The review identified
one ''significant finding" relating to food safety and sanitation,
finding that “internal controls for maintaining a safe, sanitary,
and secure environment were not adequate.” There were also three
repeat deficiencies that had been identified in the July 2005 Program
Review and two new deficiencies. The report also noted that a lack
of supervisory direction and failure to follow established procedures
existed in various areas, which hampered the overall effectiveness of
the department and prevented acceptable accomplishment of food safety
and sanitation. The memo also advised the Warden that he was required
to respond to the significant finding and provide recommendations with
planned corrective action and a time frame by March 16, 2008.
The record further reveals that an Operational Review of the Food
Service Program was conducted in February 2009 by the Occupational
Safety and Environmental Health Manager (OSE) at the Beaumont Complex.
In his February 27, 2009 report, the OSE said that there was a “repeat,
significant finding” relating to food safety and sanitation, and "repeat
deficiencies" relating to inaccurate food budget projections resulting
in significant underestimation of food service costs. The report noted
that while there were "repeat discrepancies," there were also numerous
improvements, and that the Safety Department was assisting Food Service
with formal inspection protocols. The report included that current
internal controls appear too narrow in scope and place the burden
on the Food Service Administrator (FSA) rather than on the AFSA and
staff responsible. A number of vital functions, affecting mandatory
ACA standards, are still not being performed at acceptable levels.
Improvements need to be made regarding protecting food from the risk of
contamination and the development of food borne hazards.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
final decision within the time frame provided in 29 C.F.R. § 1614.108(f).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons
for its actions. Changes to Complainant's work schedule were based on
the significant health and sanitation problems and lack of supervisory
oversight by Food Service management identified in the 2008 and 2009
reviews. As an AFSA, Complainant was responsible for the overall
operation of the Food Service Department at her assigned institution
within the Beaumont complex. Although AFSA’s had not previously
worked weekends, the health and sanitation deficiencies and the need
for increased supervision in food services identified in the reviews
were legitimate reasons for making the schedule change and requiring
daily supervision. Concerning Complainant's remaining claims, the Agency
noted that these concerns were raised following the 2008 Program Review
and the 2009 Operational Review identifying problems in the oversight
and direction of the Food Services Department that should have been
provided by the FSA and assistants.
The FSA, Complainant's supervisor, stated that management did not believe
that the AFSA’s were doing an adequate job. These were not unreasonable
concerns given the serious deficiencies and lack of supervision identified
in the 2008 and 2009 reviews set out in this record. The Agency noted
that the FSA asked for the opportunity to work with the AFSA’s.
The Agency further noted that his efforts were successful, and the
FSA in fact complimented Complainant's contributions to improving the
department. When Complainant submitted a memorandum alleging workplace
harassment by the Associate Warden (AW), regarding the purported comments
he had made regarding her job effectiveness, the Agency stated that it
promptly addressed these allegations by establishing a threat assessment
committee. The committee did not find any threat of physical harassment,
but recommended that the AW undertake counseling and/or training for
more effective communication and interpersonal skills. Rather than
precluding Complainant from exercising her supervisory authority, the
record indicates that the FSA worked with Complainant to improve her
interactions with her staff and to administer discipline properly.
In conclusion, the Agency found that the events of which Complainant
complains, either individually or collectively fail to rise to the level
of unlawful harassment prohibited by Title VII. Most importantly, there
is no evidence that any of the actions or decisions of Agency management
were motivated by unlawful reasons. Complainant failed to establish that
any of management's reasons for its actions were pretextual or unworthy
of belief. Complainant failed to establish discrimination under either
the theory of disparate treatment or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the Agency improperly
found no discrimination in this matter. She further asserts that the
Agency did not adequately address her claims of harassment.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (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”).
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). 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 v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “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.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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 her 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. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected
classes, management continuously subjected her to a hostile work
environment. However, we find that Complainant has not shown that she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving her protected classes, or the harassment complained of
was based on her statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where Agency management took actions that
were either adverse or disruptive to her, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent Complainant is alleging disparate treatment with respect to
her claims, she has not shown that the Agency's reasons for its actions
were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2012
__________________
Date
2
0120113905
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113905