Lynne E.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 20, 2020

2019000913 (E.E.O.C. Feb. 20, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynne E.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2019000913 Agency No. 201727536FAA03 DECISION On November 2, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 28, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision which found that Complainant did not prove that she was subjected to discrimination and or harassment as she alleged. ISSUE PRESENTED The issue presented is whether the Agency erred in finding that Complainant was not subjected to discrimination and/or harassment with respect to her nonselection for a detail and other matters. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory, Airway Transportation Systems Specialist at the Agency’s Jacksonville Air Route Traffic Control Center (ARTCC) in Hilliard, Florida. Complainant applied for a detail in her office and was not selected. A Black male employee was selected for the position. Complainant maintained that her second- line supervisor (Supervisor 2), did not select her based on her race, color, and sex, and because he 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. 2019000913 2 considered her to be an angry Black woman, and had shared this belief with other employees. On January 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (black) when: A. On September 5, 2017, she learned that she was not selected for a detail to the position of Acting Jacksonville ARTCC Group Technical Operations Manager (TOM); and B. She was subjected to harassment (non-sexual) based on race (African American), color (black) and sex (female) from November 2012 and continuing when, for example: 1. In November or December 2012, her supervisor promised another employee a detail to her position of record, beginning in January 2013, without advising her; as a result, she took a detail in Memphis in January 2013, on very short notice. 2. Her supervisor repeatedly described her to others as an “angry black woman.” 3. On July 22, 2015, her supervisor sent her an e-mail that she perceived as aggressive and unprofessional. 4. On November 21, 2016, her supervisor sent her an email that she perceived as aggressive and unprofessional. 5. On August 11, 2017, her supervisor sent her an e-mail admonishing her for responding to someone who asked her for information. 6. In August 2017, her supervisor interfered with the discussion she had with the union representative regarding the watch schedule. Her supervisor told her employees to disregard any prior directions she had given them regarding the schedule. 7. On September 15, 2017, her supervisor conducted a Weingarten investigation against her. 8. From August 2016 to August 2017, she was not selected for details in which she expressed interest. 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. In accordance with Complainant’s request, the Agency issued a final decision (the FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complainant established a prima facie case of discrimination, but the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that while Complainant was qualified for the position, the instruction to the selecting panel was to select someone who had not previously served as a Technical Operations Manager. Two names were selected for the position, both males. One of the males had previously served in a detail position, so the male that had not served was selected. 2019000913 3 Further, the FAD found that Complainant did not demonstrate that the Agency’s reasons were pretext for discrimination. The Agency noted that Complainant did not demonstrate that her qualifications were so observably superior to those of the selectee that, absent discrimination, he would not have been selected. The Agency also noted that while Complainant maintained that she trained the selectee and that he worked under her supervision twice, he too was a supervisor. The Agency conceded that there was evidence that Supervisor 2, the Selecting Official, had referred to Complainant as “an angry black woman,” however, there was no evidence presented which showed that this comment was a factor in her nonselection. Consequently, the Agency determined that Complainant did not demonstrate by a preponderance of the evidence that she was subject to discrimination based on prohibited factors as alleged. With respect to Complainant’s harassment claim, the Agency found that Complainant did not demonstrate that the conduct at issue was severe or pervasive enough to establish a hostile work environment. The Agency explained that an employee was told that they would be placed in Complainant’s position because she had applied and been selected for a detail, so a replacement was needed for her position. Regarding being called an “angry black woman,” the Agency found that several employees submitted statements that they heard Supervisor 2 make the comment.2 While the Agency acknowledged that the description of the Complainant as an “angry black women,” was a stereotype that assumes those labeled are exhibiting negative characteristics, such as aggression and hostility, the comments here were isolated and not pervasive enough to constitute unlawful harassment, nor did the comments result in tangible employment actions. Further, regarding incidents B3 - B7, Complainant alleged that Supervisor 2, through his emails, was aggressive and admonishing. The Agency countered that the incidents involved work-related matters and occurred sporadically. The Agency noted that statements regarding Complainant’s work performance, such as work assignments, instructions, and admonishments are within the routine business operation of the Agency, and do not indicate harassment. Finally, regarding incident B8, where Complainant maintained that she was not selected for details for which she expressed interest. Management noted that during the time frame indicated by Complainant, she was selected for several details. In fact, from 2010 to 2017, she was detailed/temporarily promoted five times. Management asserted that there was nothing in the record which suggested animus based on any prohibited EEO factors. The Agency maintained that the incidents Complainant listed were, for the most part, work-related matters that were not severe or pervasive enough to establish a hostile work environment. 2 Complainant presented no evidence that she heard the comment. The record, however, contained written statements submitted in October 2017, from three employees that heard Supervisor 2 make the comment. CW1 stated that she heard the comment on two occasions offsite, in 2012 and again in 2015. CW2 and CW3 also testified they heard the comment. CW2 could not verify when or where he heard the comment. CW3 stated that he heard the comment in 2012, at an off-site event. 2019000913 4 CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that she disagrees with the Agency’s findings. She maintains that the Agency did not show that the selection decision was conducted in accordance with Human Resources’ standards. She also maintains that the Agency erred in finding that she was not subjected to harassment by Supervisor 2, and that his comments regarding her being an “angry black woman” hurt her opportunities for promotion. She maintains that contrary to the Agency’s assertion, Supervisor 2 was forced out, and did not voluntary resign. She asserts that Supervisor 2 was offensive to so many people and that he was forced to retire. In response, the Agency contends, among other things, that its decision should be affirmed as Complainant did not show that the Agency’s reasons were pretext for discrimination. Complainant also did not show that the conduct she maintains was harassing was severe or pervasive enough to establish a hostile work environment. ANALYSIS AND FINDINGS Standard of Review 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”). Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). 2019000913 5 Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume, arguendo, Complainant established a prima facie case of discrimination regarding all her protected bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely the Agency explained that Complainant was not selected for the detail because the selecting official wanted someone who had not already had a detail opportunity. The record showed that Complainant had been detailed at least five times. Consequently, Complainant’s belief that she was more qualified is not relevant because that was not the selection criteria. Moreover, even if the selection was not in accord with the Agency’s regulations and procedures regarding Human Resources that would not, by itself, indicate that discrimination play a role. Finally, we find no persuasive evidence that Supervisor 2’s comments about Complainant, which were made as early as two years and as late as five years before the selection, played a role. Accordingly, we find that Complainant did not demonstrate that the Agency’s reasons where pretext for discrimination. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were 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). At the outset, we find that, except for incident B2, there is no evidence that Complainant’s race, color or sex played any role in these matters. Incidents B1, B3, B4, B5, B6, B7, and B8 are all work-related actions. In fact, incidents B3 - B5 all involve emails to Complainant regarding her work performance, such as work assignments, instructions, and admonishments. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (Jun. 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Regarding incidents B1 and B8, a review of the record supports the Agency’s determination that these matters did not occur as perceived by Complainant. The record indicates that an employee was told that they would be placed in Complainant’s position because Complainant had applied and been selected for a detail, so a replacement was needed for her position. 2019000913 6 Furthermore, although Complainant maintained that she was not selected for multiple details for which she expressed interest, the record indicated that, during the time frame indicated by Complainant, she was detailed/temporarily promoted five times. Finally, with regard to incident B2, the record indicates that Supervisor 2’s offensive comments were isolated and were not severe or pervasive enough to rise to the level of a hostile work environment. 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). We also note in this regard, Complainant’s statement that Supervisor 2 was offensive to so many people and that he was forced to retire, which indicates that she was not singled out because of her race, color or sex. CONCLUSION Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to discrimination and/or harassment. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 2019000913 7 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 20, 2020 Date