Marry T.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionNov 4, 20160120142005 (E.E.O.C. Nov. 4, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marry T.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120142005 Hearing No. 480-2012-00035X Agency No. BOP-2011-0332 DECISION The Commission accepts Complainant’s appeal from the Agency’s March 28, 2014 final order 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 final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Program Specialist at the Agency’s Metropolitan Detention Center in Los Angeles, California. On April 9, 2010, Complainant submitted a memorandum to her supervisor (S1-1) after receiving her 2010 evaluation in which she accused him of “treating her unfairly and very hostile.” In addition, on May 10, 2010, Complainant sent a memorandum to the Associate Warden alleging that S1 had harassed her when he used the phrase “adding another nail to [her] coffin” when he accused her of lying about the time she arrived at the office that morning. Complainant claimed that she was stunned and believed it was a threat. S1-1 later 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. 0120142005 2 appeared at Complainant’s desk and explained to her that “another nail in the coffin” was an expression. The Warden referred the matter to the Office of Internal Affairs, and the Associate Warden counseled S1-1 for making unprofessional comments. S1-1 retired in August 2010, and was replaced by a new supervisor (S1-2) in September 2010. Complainant alleged that she continued to have the same kind of problems with S1-2 that she had with S1-1. Complainant alleged that she learned from co-workers that S1-2 had blamed her for problems with Accounts Payable. Around September or October 2010, Complainant was named to participate in a program review. The Associate Warden removed Complainant’s name from the list after receiving input from the Regional Office Comptroller about Complainant’s ongoing performance issues. On February 1, 2011, S1-2 issued Complainant her quarterly performance log entries for October to December 2010, and gave Complainant two “Fully Successful” notations and two “Exceeds” notations. On March 28, 2011, S1-2 issued Complainant her quarterly performance log entries with four “Exceeds” notations and one “Fully Successful” notation. On May 10, 2011, Complainant received an “Exceeds” overall rating on her annual performance appraisal. On March 23, 2011, the Associate Warden directed the Business Office staff to cease deviating from the negotiated compressed work schedule. S1-2 had requested the Associate Warden to return to the officially approved compressed schedule because an informal practice to change Complainant’s scheduled days off caused a staffing shortage. On February 10, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (White), national origin (Hispanic), sex (female), age (49), and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, she was subjected to defamation of character; verbal threats; death threats; and unfair treatment regarding the issuance of her performance log entries and her yearly performance evaluation. Additionally, Complainant alleges that management failed to act on her reports of a hostile work environment. At the conclusion of the investigation, the Agency provided Complainant 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 (AJ). Complainant timely requested a hearing, but the AJ granted summary judgment in favor of the Agency and issued a decision without a hearing on February 13, 2014. In the decision, the AJ determined that Complainant failed to demonstrate that she was subjected to a hostile work environment. The AJ found that there was no evidence that incidents alleged were based on discriminatory or retaliatory animus. With regard to the “death threat” made by S1-1, the AJ determined that even if a S1-1’s use of a common idiom could be construed as a death threat, there was no evidence of discriminatory or retaliatory 0120142005 3 intent. Furthermore, the evidence showed that the Associate Warden counseled S1-1 about this comments and there was no evidence that S1-1 made any similar comments thereafter. As a result, the AJ found that Complainant had not been subjected to a hostile work environment, discrimination, or reprisal as alleged.2 The Agency subsequently issued a final order fully implementing the AJ’s decision. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 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) 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. 2 The AJ dismissed several additional allegations that occurred prior to 2010, as Complainant raised the matters in a prior informal EEO complaint which she later acknowledged was “resolve[ed] informally with the Warden.” Complainant raised no challenges to the AJ’s dismissal on appeal, and the Commission finds no basis to disturb the dismissal of the claims. 0120142005 4 The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. 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. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, S1-1 denied making a death threat; rather, he asserted that he simply used a figure of speech regarding Complainant’s job performance. ROI, at 165. Nonetheless, the Associate Warden referred the incident to Internal Affairs for an investigation and instructed S1-1 to cease any further unprofessional conduct. Id. at 107. There is no evidence that any similar conduct recurred. As to her claim that S1-1 treated her very unfairly, S1-1 confirmed that he performed many of Complainant’s expected responsibilities which he reflected in her quarterly and annual appraisals. Id. at 164. Regarding her claim of defamation of character, S1-2 explained that Complainant’s name appeared on a list to go to a future program review in Fall 2010. ROI, at 121. S1-2 stated that she spoke with the Associate Warden, and they decided she should not attend at that time. Id. at 122. S1-2 confirmed that they decided this based on Complainant’s difficulty in independently performing the duties necessary. Id. The Associate Warden added that the Regional Comptroller had previously assessed Complainant’s ability to perform her duties and indicated that she was not someone who should be considered for a program review based on her current capabilities. Id. at 109. Additionally, S1-2 denied discussing Complainant’s performance with anyone other than management officials. Id. at 126. As to her schedule change, S1-2 confirmed that she requested that the staff return to their official, negotiated schedule because Complainant was taking the same day off as another co- worker which resulted in a staffing shortage. ROI, at 128. With respect to her performance log entries and appraisal, S1-2 stated that she believed in keeping the appraisal process very open and often solicited feedback and accomplishments that employees would want to be considered for their performance log entries. ROI, at 124. S1-2 noted that Complainant did not provide any feedback for consideration. Id. at 125. S1-2 stated that she considered Complainant’s performance log entries and appraisal ratings to be very positive, but Complainant disagreed. Id. S1-2 added that when she issued Complainant’s annual appraisal, Complainant reacted in a manner in which S1-2 felt threatened. Id. at 126. The Associate Warden confirmed that S1-1 performed many of the duties of Complainant’s position while she was under his supervision and, as a result, Complainant was not up to par on certain parts of her job. Id. at 110. Construing the evidence in the light most favorable to Complainant, the Commission agrees with the AJ that Complainant has not shown she was subjected to a hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation was pretext for discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment 0120142005 5 decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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 order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence 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). 0120142005 6 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 November 4, 2016 Date Copy with citationCopy as parenthetical citation