0120142043
10-27-2016
Larraine D., 1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Larraine D., 1
Complainant,
v.
Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120142043
Hearing No. 510-2012-00007X
Agency No. FDICEO-11-032
DECISION
On March 18, 2013, Complainant filed an appeal from the Agency's February 8, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Resolutions and Receiverships Technician at the Agency's East Coast Temporary Satellite Office in Jacksonville, Florida.
On April 7, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discriminated against her on the bases of race (African-American), sex (female), disability (perceived post-surgery and high blood pressure), age (56), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973. In support of her claim, Complainant alleged the following events:
1. On March 17, 2011, Complainant was forced to resign due to the stress of working for her supervisor (Supervisor).
2. On March 11, 2011, Complainant received a Letter of Warning from the Supervisor in reference to her performance; the letter provided her with a listing of daily, weekly and monthly expectations.
3. On March 4, 2011, the Supervisor told Complainant, "you really don't want to receive a performance appraisal from me because it's stacked with a plate of high octane stress."
4. On March 2, 2011, while Complainant was on break, the Supervisor began to her Complainant about the Weekly Closed Bank reports, and when she asked the Supervisor questions to clarify his request, he displayed an "attitude" and was "flippant" in his response. The Supervisor changed his requirements every week for the weekly report in an effort to "trip her up" in her performance and to insinuate that she has problems following instructions.
5. On March 1, 2011, Complainant received an overall "Unacceptable" rating on her annual Performance Management and Recognition Performance Plan and Evaluation (PMR) for 2010.
6. On March 1, 2011, when Complainant met with the Supervisor and the Manager to receive her PMR, the Supervisor discussed how Complainant contacted the union and told her that she would "forever be retaliated against" for contacting the union. The Supervisor also told Complainant that she would not use the Agency's Workplace Dispute process to resolve disputes.
7. During the January-February 2011 timeframe, before the start of a staff meeting, Complainant was looking out of a window when the Supervisor startled her by "jumping at her with his voice" and instructing her to stop looking out of the window.
8. On February 8, 2011, and on additional occasions, Complainant was sexually harassed by a male coworker (Coworker).
9. During the October-November 2010 timeframe, when Complainant met with the Supervisor and the Manager for the first time, the Supervisor referred to her as "some type of religious church member of some type of religion."
10. The Supervisor told Complainant that she could not take Claims Agent certification training even though she was selected for the training because, "she has already failed at everything she has been asked to do since September 13, 2010."
11. During the last five months of Complainant's employment, the Supervisor denied Complainant's morning and afternoon 15 minute breaks on numerous occasions.
12. On an ongoing basis, the Supervisor subjected Complainant to his anger by constantly verbally abusing and yelling at her and she asserted that she did not treat male staff in the same manner. The Supervisor also unfairly rated and compared Complainant's performance to another employee (Technician) who Complainant saw as a "high level employee."
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. The AJ noted that pursuant to a Scheduling Order dated October 12, 2012, the parties were to have a telephonic prehearing on November 16, 2012 at 1:00 p.m. Complainant failed to appear and could not be located. The AJ issued an Order to Show Cause why sanctions should not be imposed. Complainant's response was filed on November 23, 2012, showing that Complainant had hypertension and was in the hospital on November 20 and 22, 2012. Complainant did not specifically explain why she did not appear for the prehearing teleconference on November 16, 2012. Based on Complainant's refusal to participate in the teleconference and her failure to comply with the AJ's Show Cause Order, the AJ sanctioned Complainant and cancelled the hearing.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. Complainant asked that the Commission find that the Agency subjected her to discrimination in violation of Title VII, the Rehabilitation Act, and the ADEA. Complainant asserted that the Agency relied on comments by her "hater's club" including the Supervisor and the Manager. She asked that the Agency settle the case at hand for a specified amount of money and a position at the GS-11 level. The Agency asked that the Commission affirm its finding of no discrimination.
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 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").2
Disparate Treatment
In claims 2, 5, 10, 11, and 12, Complainant alleged claims of 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, he or 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for these claims. In claim (2), the Supervisor issued Complainant a Letter of Warning based upon her 2010 performance appraisal rating of "Unacceptable." He asserted that any employee with such a rating is required to be placed on a 45-day improvement plan with an explanation of their deficiencies and how to improve them. As to the performance rating for 2010 raised in claim (5), the Supervisor noted that he rated her and based it upon her performance deficiencies and inability to complete the weekly report which despite training she could not do. The Supervisor noted that for the training raised in claim (10), the training was for Specialists and not Technicians like Complainant. The Agency had three new Specialists join who need the training and there was no more room for Technicians. Therefore, Complainant, although she was initially granted the training request, the Agency could not provide it. The Supervisor averred that he did not deny Complainant's breaks or that he was watching over her in response to claim (11). As to claim (12), the Supervisor indicated that he did not threaten to fire her and did not have the authority to do so. He noted that it became clear that Complainant was struggling with completing weekly reports and asked if she was proficient in Excel which was a minimal requirement for the position. He found Complainant's work was never completed accurately and he asserted that his interactions with her centered on this weekly report.
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Upon review, we find that Complainant failed to do so. As such, we conclude that Complainant failed to show that she was subjected to disparate treatment.
Harassment
It is well-settled that harassment based on an individual's sex, race, disability, age, and in reprisal for prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race, sex, disability, age and/or prior EEO activity; (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. 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 on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
In support of her claim, Complainant asserted that the Supervisor would give her "cold stares", compared her to a "high-level" employee, and took issue with her performance. Complainant indicated that the Supervisor started a meeting by degrading her. The Supervisor denied being hard on Complainant. He denied telling Complainant that they would retaliate against her for going to the Agency's dispute resolution process. Furthermore, the Supervisor indicated that his concern with Complainant centered on the weekly reports and Complainant's inability to perform the task in a satisfactory manner. Upon review, we find that Complainant has not shown that the alleged events constituted unlawful harassment or that the alleged events occurred because of her protected bases.
In addition, we note that in claim (8), Complainant asserted that the Coworker subjected her to sexual harassment by "gawking" at her and telling her one day in the elevator when she mentioned that she had a cold and he responded that if it were not the case, he would kiss her. Complainant noted that she mentioned the incident to two other employees but did not say the Coworker's name. She also stated in her affidavit that she did not inform management of the situation. As such, if we were to find that the Coworker created a hostile work environment, we cannot conclude that the Agency is liable for the actions of the Coworker.
Constructive Discharge
Complainant also asserted that, due to the hostile work environment, she had to resign. As such, Complainant argued that she was constructively discharged from the Agency. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't. of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002).
The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the Complainant created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, Complainant failed to provide any evidence to support her assertion that the conduct that created the intolerable working condition constituted discrimination. Therefore, we conclude that Complainant has not established her claim of constructive discharge.
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 (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
October 27, 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 We note that Complainant did not challenge the AJ's dismissal of the hearing. As such, we find that she has not contested the cancelation of the hearing by the AJ and we will not review the AJ's decision.
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