Lula N.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionSep 1, 20160120141935 (E.E.O.C. Sep. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lula N.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120141935 Agency No. BOP-2012-0650 DECISION The Commission accepts Complainant’s appeal from the April 10, 2014 final Agency decision (FAD) 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’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Computer Services Manager at the Agency’s Federal Correctional Institution Schuylkill facility in Minersville, Pennsylvania. On March 9, 2012, Complainant claimed that her first-level supervisor (S1) ordered her to come to the Human Resource Manager’s (HRM) office to discuss his expectations of her. Complainant said that during the meeting, S1 instructed her to stand "mainline" and carry a radio, which were things she was not previously required to do. Complainant stated that when she asked if S1 was also required to stand mainline and to carry a radio, S1 refused to answer the question. Thereafter, S1 issued Complainant a sick leave abuse letter for leave used from January 2011 through February 2012. After Complainant refused to sign the letter, Complainant claimed that S1 then ordered her to sign it in an angry 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. 0120141935 2 voice. Complainant insisted that she used her leave in accordance with policy and should not have been issued the letter. Complainant stated that in June 2012, the leave restrictions were removed. Complainant claimed that on another occasion, S1 stepped in front of her in an aggressive manner when she was coming from mainline. In addition, Complainant alleged that S1 greeted her by her formal name and asked if she was carrying a radio. S1 responded that she was not carrying her radio, and S1 instructed her to get a radio. On March 14, 2012, Complainant claimed that she sent S1 an email asking if he wanted a copy of the home computer directory of the former Captain who had left the prison. S1 later appeared in her office and asked to see the policy that permitted him to look at the former Captain’s directory. Complainant stated that she could not readily find the policy and asked S1 to come back later. Complainant claimed that S1 returned 10 minutes later, spoke with her office mate, but left the office without greeting her. On May 29, 2012, Complainant claimed that she missed a department meeting and asked S1 for the minutes of the meeting. According to Complainant, S1 told her that there were no minutes from the meeting, but she could see him and he would brief her on the meeting. S1 talked with Complainant about the meeting, and instructed her to start completing the remarks section of her leave slips. Complainant requested that S1 provide her a copy of the policy that required her to do so, what information he wanted, why he wanted that information, and what he was going to do with that information. Complainant claimed that S1 became upset and told her “you listen to me, you don’t make demands from me, you got your instructions, now leave.” Complainant alleged that S1 sent her two or three harassing emails a week. Complainant stated that one email was specifically designed to “admonish” and “humiliate” her. More specifically, Complainant recommended in an email exchange with S1 that he find someone other than her to run an “NIC” broadcast because it was not her responsibility and she had a schedule conflict. According to Complainant, S1 responded by telling her that it was not her place to assign work to him and instructed her to read her attached position description if she needed further clarification of the point. In October 2012, Complainant learned that she was under investigation by the Office of Internal Affairs for breach of computer security and failure to follow policy. Complainant believed that S1 referred her for investigation to harass her. Complainant claimed that as a result of the incident involving S1 and the former Captain's computer directory she learned that it was no longer policy to allow a supervisor access to a former employee's directory. The policy went into effect in 2006 and required the Warden to approve access. Complainant stated that she did not knowingly and intentionally violate Agency policy. 0120141935 3 On June 5, 2012 (and amended on November 2, 2012), Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of age (54) and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, from February 27, 2012, to May 29, 2012, she was subjected to harsh supervision; given a sick leave abuse letter; and informed that she had been placed under investigation for breach of security and failure to follow policy.2 At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency initially determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that Complainant failed to show that the alleged incidents were based on her protected classes. For example, S1 denied treating Complainant harshly. S1 stated that in March 2012, he instructed Complainant to wear a radio for accessibility and safety, not to harass her. S1 affirmed that he saw Complainant without a radio on March 14, 2012, and again instructed her to wear one and told her that the control room could issue her one. In addition, S1 did not initiate the sick leave audit and sick leave abuse letter process. According to Complainant’s former supervisor (FS), he became concerned that Complainant was abusing her sick leave and requested an audit of Complainant’s sick leave use. FS and S1 stated that because of competing priorities, the audit was not completed until after S1 became Complainant's supervisor. Therefore, the Agency concluded that although S1 made the final decision to issue the letter, FS initiated the process. The Agency found that the fact that FS, whom Complainant claimed was unbiased, participated in the investigation of her sick leave, undercut her argument that S1 singled her out and issued her the sick leave abuse letter. With respect to S1’s request for information on the Agency’s computer policy, S1 stated that Complainant emailed him asking him if he wanted access to a former employee’s home directory. S1 went to Complainant’s office to request clarification regarding the policy which would allow him access without the Warden’s permission. Complainant looked for the policy and S1 agreed to return later. S1 affirmed that he returned about 20 minutes later, but Complainant was still unable to find the policy and agreed to email him when she found it. S1 asserted that Complainant approached him about leave slips on May 29, 2012. S1 confirmed that he asked Complainant to state in the remarks section whether the leave was 2 The Agency dismissed an additional claim for untimely EEO counselor contact. Complainant did not specifically challenge the dismissal of this claim on appeal. The Commission will consider the claim as background evidence in support of Complainant's overall hostile work environment claim. 0120141935 4 scheduled or unscheduled, as he had with all of his department heads. According to S1, Complainant demanded to see the policy that required her to complete the remarks section. S1 stated that he told Complainant that as her supervisor, he would not respond to demands from her. S1 emphasized that he treated Complainant professionally. S1 denied treating Complainant unprofessionally through email. S1 affirmed that he emailed Complainant regarding the "NIC" broadcast and told her that, as the Computer Services Manager, it was her responsibility to facilitate the broadcast. Further, S1 said that he told Complainant that it was not her place to assign him work, that it was his job to assign her work. S1 admitted that he attached Complainant’s position description and the organizational chart to the email to support his position, but denied that he did so to humiliate Complainant. Finally, S1 denied referring Complainant for investigation by Internal Affairs. S1 stated that only the Warden could refer employees for investigation. The Warden confirmed that he referred Complainant for an Internal Affairs investigation after he learned that Complainant had provided the Health Services Administrator access to a former employee’s directory without his permission. The Warden stressed that he was required by Agency policy and the Regional Director to refer Complainant for investigation. The Warden added that Internal Affairs sustained the charges of breach of security and failure to follow policy against Complainant and that discipline was pending. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that S1 subjected her to a hostile work environment and the Warden encouraged it. Complainant argues that the Agency ignored evidence of the hostile work environment and S1’s disgraceful conduct towards her. Complainant alleges that management officials colluded and others made statements out of fear of S1. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Hostile Work Environment 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 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) 0120141935 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). Therefore, to prove her harassment claim, Complainant must establish 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. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that Complainant has not shown she was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. For example, S1 stated that he instructed Complainant to wear a radio for accessibility and safety. ROI, at 398. S1 acknowledged that Complainant’s former supervisor did not require her to wear one; however, he requested that she wear one for her own safety and for staff accessibility. Id. S1 stressed that he treated Complainant professionally. Id. Regarding the sick leave abuse letter, FS confirmed that he initiated the process after he became concerned about Complainant’s use of leave in conjunction with scheduled leave and days off under his supervision. Id. at 497-98. S1 issued the letter based upon Complainant’s pattern of leave usage and repeated absences. Id. at 475. Finally, the Warden confirmed that he referred Complainant for an Office of Internal Affairs investigation after S1 notified him that Complainant had offered him access to a subordinate staff member’s hard drive in violation of the Agency’s policy. Id. at 390. The Warden later received a memorandum from the Health Services Supervisor stating that he had been allowed access to a subordinate’s hard drive by Complainant for approximately three months. Id. The Warden emphasized that he was required to report the matter, and the Office of Internal Affairs later sustained the charges breach of security and failure to follow policy. Id. at 389-90. Finally, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that Complainant has not proffered any evidence that the Agency's explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 0120141935 6 CONCLUSION 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 (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 0120141935 7 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 September 1, 2016 Date Copy with citationCopy as parenthetical citation