0120092639
10-20-2009
Lisa Capozzoli, Complainant, v. John M. McHugh Secretary, Department of the Army, Agency.
Lisa Capozzoli,
Complainant,
v.
John M. McHugh
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092639
Agency No. ARFTMONM08JAN00197
DECISION
On May 20, 2009, complainant filed an appeal from the agency's April 9, 2009 final decision concerning her equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant, a federal employee for twenty-eight years, worked as a GS-13 Procurement Specialist at the agency's Fort Monmouth, New Jersey location. Complainant was assigned to the Rapid Response Project Office and was being accommodated for a disability with a four day per week flexiplace agreement which reduced the fatigue associated with her commute. In 2004, she accused a former supervisor of sexual harassment. In 2006, she again accused the former supervisor of harassing her. The accusation resulted in a "no contact order." Specifically, the alleged harasser was to have no contact with complainant.
In December 2007, the former supervisor sent an email, which included complainant as an addressee, among others, and which complainant did not open, believing it to be in direct violation of the no contact order and sent under the "pretext" of work. The alleged harasser was given a Letter of Reprimand for having made this email contact. When complainant later reviewed the email, she admitted that it was a work-related message, unconnected to the inappropriate conduct in which the alleged harasser purportedly engaged in 2004 and again in 2006.
The record reflects that the alleged harasser was tracking the same project on which complainant was working. Moreover, the alleged harasser had been in communication with complainant's first line supervisor about the project as early as October 2007. When complainant discovered this, she became extremely upset and asked to be removed from the project, and her request was granted. Complainant believed that her first line supervisor's actions in assigning her to a project that the alleged harasser was responsible for tracking amounted to disability-based harassment because the overlapping assignment caused complainant stress which severely exacerbates her disability. In addition, while trying to determine why or how the alleged harasser knew that she was working on the project, complainant discovered that a male co-worker was listed as the point of contact for a different project in the continuity file. Complainant contends that this amounted to sex based harassment because she, not he, completed all of the work associated with the project.
In early 2008, three things occurred that caused complainant to think she was being retaliated against. First, her second line supervisor asked that she not come into the office for two months due to building renovations and that complainant notify her if she did come in on any other day besides her regularly scheduled Monday. Second, a team meeting that was customarily scheduled for Mondays was rescheduled to Wednesdays. Finally, her first line supervisor redistributed the workload and changed some work assignments resulting in complainant's having to work with two allegedly novice, inexperienced engineers. Complainant claims that these individuals caused her to have to do double the amount of data entry which compounded the joint pain and swelling in her hands.
On March 12, 2008, complainant filed an EEO complaint alleging harassment. As noted above, her disability was identified as motivating her supervisors to permit her to be assigned to the same project the alleged harasser was tracking. Her sex was attributed to her not being the point of contact on the project and her prior protected activity identified as motivating her supervisors to make changes in the way things had customarily been done. The Commission notes that complainant did not allege that she was being harassed by her former supervisor.
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). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found that complainant failed to prove that she was subjected to the alleged harassment. Specifically, the agency offered legitimate and nondiscriminatory reasons in explanation for the incidents. Concerning the email, the first line supervisor stated that she did not know of the "no contact order," and the second line supervisor, who did know about it, did not know the alleged harasser was tracking the project. Moreover, the alleged harasser was not in complainant's chain of command, and his involvement in the project concerned "tracking," presumably its progress. When the email came to light, complainant's request. to be removed from the project was honored immediately.
Concerning complainant's male coworker, the first line supervisor stated that he was in the system as a point of contact and that he provided her with the status in response to a request. She added that he did not receive any award or recognition for the project. The first line supervisor also explained that meetings were rescheduled to Wednesday to allow the maximum number of teleworking employees to appear in person and that as a senior level employee, complainant was assigned an engineer with four years of experience and a new employee who was hired due to her experience for the purposes of cross training technical employees. Complainant was not singled out on this matter, as a GS-12 employee was also assigned two technical employees who requested cross training. Finally, the second level supervisor explained that she requested notice of a change in complainant's telework schedule so that she could guarantee that there would be no contact between her and the alleged harasser.
CONTENTIONS ON APPEAL
Complainant argues that her rebuttal to the report of investigation was not considered by the agency in its final decision. Moreover, complainant argues that the agency's investigation was "subjective." Complainant also regrets having declined to request an administrative hearing. The agency responded stating that complainant "misguidedly protests" its final decision and that her appellate arguments are the same that she offered during the investigation's fact finding session and in rebuttal to the report of investigation.
ANALYSIS AND FINDINGS
Initially, we find that the record was adequately developed by the agency, and we agree with the agency that complainant has not offered persuasive arguments that would warrant reversing its final decision.
Complainant has to prove that she was subjected to a hostile work environment by establishing that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Moreover, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, disability, sex or reprisal. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
We find that complainant fails to establish either of the elements.1 No one in complainant's chain of command knew that she was working on a project with someone who had been ordered to have no contact with her. The first line supervisor knew that she was working on the project but did not know of the no contact order. The second line supervisor knew of the no contact order but did not know complainant was working on the project. Moreover, the alleged harasser, sent a work-related email to multiple individuals involved in the project he was tracking, and was outside their chain of command. In addition, both supervisors were involved with ensuring that complainant received very generous accommodation for her disability, enabling her to remain a productive worker. There is nothing in the record to support a finding that a reasonable person would have found the circumstances surrounding this inadvertent overlap and its consequent work related email severe or pervasive enough to create a hostile work environment based on disability.
Similarly, we find no evidence that complainant was subjected to sex based harassment when her first line supervisor contacted her coworker, who was listed in the continuity file as a point of contact, for a status request. The first line supervisor explained that she has to respond to many status requests, and she relies on the system to identify the appropriate employee to ask. If the wrong employee is contacted, he/she responds accordingly. In this case, complainant's coworker gave the first line supervisor the response she sought. Complainant contends that she was the lead on the project. However, she acknowledges that this occasion was the first time she had been the lead and that she consulted with her male coworker for guidance and assistance. Complainant's subjective perception, in the absence of compelling evidence, that she was the only individual worthy of being contacted about the status of the project is self serving and fails to acknowledge the boundaries of her own role as a subordinate employee. Moreover, there is no evidence that the coworker was trying to take credit for complainant's work or was later rewarded for it. There is nothing in the record to support a finding that a reasonable person would have found the circumstances surrounding this status request severe or pervasive enough to create a hostile work environment based on sex.
Finally, turning to the allegedly retaliatory incidents, management offered an explanation for all of its actions: trying to ensure that complainant would not come into contact with the alleged harasser; trying to accommodate as many teleworking employees as possible; and reorganizing work assignments in response to a cross training request from the team's technical employees. Again, complainant thinks that all of these actions were taken for the sole purpose of creating more stress for her because she complained about the no contact order being violated. However, complainant does not rebut the explanations with evidence that corroborates her belief. Complainant fails to recognize that she was not the only employee for whom management was responsible and that some of management's actions may have been dictated by the needs of the program and/or the mission of the agency. There is nothing in the record to support a finding that a reasonable person would have found the management's actions severe or pervasive enough to create a hostile work environment based on retaliation.
In conclusion, complainant did not prove, by a preponderance of the evidence, that management's actions were sufficiently severe or pervasive to create a hostile work environment, motivated by any illegal animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
October 20, 2009
__________________
Date
1 We cannot consider whether these incidents, taken together, were sufficiently severe or pervasive to render the work environment hostile because complainant attributed different motivating bias, or different "bases," to her supervisor's actions. Thus we consider them individually, by basis alleged.
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0120092639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013