0120110214
02-17-2011
Mary L. Stutzman, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Mary L. Stutzman,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120110214
Agency No. F-07-6357
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 27, 2010 final decision concerning an 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.
BACKGROUND
During the period at issue, Complainant was employed as a Lead Program Analyst, at the Agency's Records Management Division, Document Conversion Laboratory Unit (DocLab) in Alexandria, Virginia.
On August 23, 2007, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the basis of race (Caucasian) when:
1. between August 12, 2005 and January 5, 2007, the Supervisory Program Analyst (SPA) made inaccurate and derogatory statements concerning situations involving her;
2. SPA undermined her authority as the Lead Program Analyst and questioned her decisions regarding employee assignments on numerous occasions in 2007; and
3. SPA required her to provide detailed descriptions of the work she performed, beginning on January 4, 2007, even though other employees were not required to provide the same detailed explanations.
The record reflects that during the relevant time, Complainant was a Team Leader and managed a team of six employees. The four functions of the DocLab include prepping documents, scanning the documents, quality control of the work performed and saving/uploading the scanned documents. In July 2005, SPA was selected as the Supervisory Program Analyst and reported to the DocLab. Complainant and a named Team Leader (TL) had applied for the same subject position but were not selected. Complainant alleged that she retired in December 2007, because "working for [SPA] was intolerable."
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on August 27, 2010, pursuant to 29 C.F.R. � 1614.110(b).
In its August 27, 2010 final decision, the Agency found no discrimination. The Agency found that the evidence in the record did not establish that Complainant was subjected to harassment based on race. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment. The Agency determined that while the record establishes that problems existed between Complainant and SPA from the beginning of SPA's tenure in the DocLab, those problems appeared to have been the result of a personality clash and communication issue between Complainant and SPA due to SPA's direct management style and her attempts to change the way work was completed in the DocLab. The Agency stated that SPA had a tough management style with high expectations of her employees and had a direct approach toward her employees.
Finally, the Agency noted Complainant alleged that she was forced to retire because of the intolerable working conditions created by SPA. The Agency stated that the record fails to demonstrate that SPA was motivated by racial animus in her dealings with Complainant. Therefore, the Agency determined that there was no basis for a finding that Complainant was forced to retire because of the discriminatory working conditions.
Regarding claim 1, SPA stated that she is task-oriented; that she focuses on the mission assigned to her; and that she is not the type of person who laughs or jokes often. She noted that she is always professional toward other employees. SPA stated that it was her mission to manage a highly effective, efficient and productive DocLab unit. SPA stated that Complainant had time management and communication problems. SPA stated that Complainant "misinterpreted and misconstrued what I said on numerous occasions. [Complainant's] co-workers did not have a similar communication problem with me."
SPA stated that shortly after her arrival to the DocLab, she instructed an employee to scan a particular document from a government Agency. SPA stated that she was not a classification expert and "at the time, I was not aware this document was classified top secret/SCI. Subsequent to this document being scanned, it was brought to my attention. This document was classified SCI. When a SCI document is accidently scanned, and uploaded to the T-Drive, this is called a 'spill' and must be reported." SPA stated that once the government Agency rendered a decision that the document should remain classified SCI, she completed and submitted an Incident Report concerning this matter. In the report, she "did not advise that I had shown this document to [Complainant] and/or [TL] before instructing the employee to scan the document. The employee who had scanned the document told me that she had shown the document to [Complainant] and [TL]. I also do not recall telling [Complainant] that I had shown her and [TL] this document and that they told me the document could be scanned." Further, SPA stated that there was no consequence as a result of the spill and once the incident was reported, no further actions were taken.
SPA stated that Complainant went to the Unit Chief (UC) and complained about her. SPA also stated that Complainant "alleged that I projected negative body language toward her and I used a hostile tone toward her. As a result of these complaints, I did not meet with [Complainant] alone and would always try to have [UC] present during any meetings I had with her. As previously stated, I'm very focused and task- oriented, which [Complainant] may have confused for rudeness."
SPA stated that during several meetings, she noted Complainant "exhibited negative body language toward me, and on one occasion [UC] reprimanded her for making facial gestures at me, which included rolling her eyes. While I supervised [Complainant], I also found where she would misinterpret instructions I provided her and she would twist comments around that I made to her...since [Complainant] was misinterpreting my verbal instructions, I documented all tasks, to include deadlines when these tasks were due." SPA stated that on several occasions, Complainant would bring up issues and incidents during Team Leader meetings "that had occurred several months' prior. These Team Leader meetings were lengthy without [Complainant] always bringing up historical incidents that were not applicable to the matters being discussed. When [Complainant] brought these matters up, that were several months old, I found these situations as examples of her inability to stay focused on current matters." SPA stated that she told Complainant that "bringing up historical non-related events was petty. [Complainant] bringing up old issues was not getting the current tasks assigned to her at the time completed."
SPA further stated that in November 2005, she met with Complainant and UC to discuss several issues concerning Complainant. SPA stated that at the time of the meeting, she sent an e-mail to UC and that the e-mail "did not contain any derogatory information regarding [Complainant]. In this e-mail I was documenting that [Complainant] had been negligent in not completing a task assigned to her timely." SPA stated that on one occasion Complainant was assigned to ensure the contact information concerning her team employees was correct. SPA stated that Complainant was not required to revise the contact list "only to ensure the accuracy of the information provided. I advised in a response to her completion of the task, that only changes in numbers would be included. When providing this information to [Complainant], I was only provided her with direction. I was not personally attacking [Complainant], nor was I aware that I had offended her with the response I provided her."
SPA stated that on December 7, 2006, she met with Complainant and TL to discuss issues concerning Complainant's performance with her. SPA stated that she then asked TL to leave because she wanted to talk privately Complainant concerning her performance issues and poor work time management skills. SPA stated that after TL left, "I do not recall telling [Complainant] that, 'I was out there three times today and you were not busy and that's all I'm going to say.' What I did explain to [Complainant] was that she had arrived to work at 5:00 a.m. and by 9:30 a.m., she had not completed any tasks assigned to her."
With respect to Complainant's allegation that when she requested leave on February 16, 2006, SPA told her that once she made up her mind, nothing she said would change her mind, SPA denied it. SPA also stated that she never told Complainant that she "would take issues and beat them like a dead horse. I do not talk like that to employees. I probably did say to [Complainant] that I like to make decisions and move forward."
UC stated that after SPA arrived to DocLab, Complainant and TL complained to him about SPA and "said she was rude. I got the impression that [Complainant] and [TL] just did not want [SPA] as their supervisor." UC stated that he was not aware of SPA providing incorrect information concerning the "spill." UC stated that Complainant and TL told him that SPA had given approval for this particular document to be scanned which resulted in the spill. UC further stated "I do not recall [SPA] saying [Complainant] and/or [TL] had indicated the document could be scanned."
UC stated that he found SPA "is very attentive, direct in her approach and knowledgeable about her job and the operation of the DocLab. If something is incorrect or not part of an established process, [SPA] will voice her opinion." UC stated that he does not recall SPA withdrawing her interest when Complainant talked during the Team Leader meetings. UC stated "as previously stated, [Complainant] had a tendency to go off on tangents in her conversations which had no bearing on the meeting. When [Complainant] went on these tangents, on different occasions [SPA] and myself would try to get [Complainant to re-focus and stay on track."
UC stated that Complainant made comments to him about SPA's body language toward her and that SPA does not listen to her. UC stated that as a result of Complainant's comments, "I purposefully observed [SPA's] interaction with [Complainant]. I did not observe [SPA] ignoring [Complainant], not projecting negative body language toward her. Once during a meeting [Complainant] overly exaggerated the body language of [SPA]. The portrayal of [SPA] was immature in its presentation by [Complainant] and reminded me of the actions observed by elementary school children."
Regarding claim 2, SPA stated that she and UC advised Complainant and TL that because scanning of documents was the priority of the unit, someone from each team should be scanning on a continuous basis. In addition, [TL] and [Complainant] were instructed to have team members performing the other functions of the process as well, to include prepping the documents, conducting QC reviews, and uploading/saving the documents."
SPA stated that in order to save time, she and UC instructed Complainant and TL not to check the T drive and review their employees' work because "their time would be better spent on completing other tasks." SPA stated that at that time she and UC instituted a productivity work environment and I wanted to ensure the new process was being followed. Before I had arrived as the SPA, the RCSs would perform all the different functions except for QC. With the assembly line [UC] and I created, each team member would only perform one function of the process. I wanted to ensure [Complainant] was assigning the team members appropriately according to the workflow process."
SPA stated that she maintains a list of the job duties to be performed by the Team Leaders. SPA further stated that she encouraged Complainant to complete all tasks assigned to her timely and "worked with her in order to improve her time management issues. At some point in time, I learned that [Complainant] was delegating the task assignments to her to her team members, to include logging in all incoming Name Check requests. Once I learned that [Complainant] had delegated some of her duties, I was concerned as to what tasks she was actually performing and what she was doing with her time. I then told [Complainant] that she was to stop having the DocLab employees perform her job duties and that she was to perform those tasks, to include logging in all incoming Name Check requests."
SPA stated that when she prepares the weekly work flow schedule, she is aware that changes might made to adjust for the amount of work received and to be completed "as well as who is available to work each day...I do not recall telling [Complainant] that she was wrong when she reassigned two employees who had been scheduled to scan. There was not sufficient work to keep both busy. [Complainant], as a Team Leader, was able to make schedule changing decisions. I will question [Complainant] or another Team Leader who removes employees from the scan line, to ensure their changes were made to further our goals. Scanning is the top priority of the DocLab Unit."
UC stated that he asked SPA what tasks Complainant was completing if she was delegating her job duties and responsibilities to her team employees and SPA "indicated she was not sure and as a result, we decided [Complainant] should be responsible for logging in the work, and not have her delegate this assignment to others."
Regarding claim 3, SPA stated that due to Complainant's poor time management skills, she requested all of the Team Leaders, including Complainant, to complete weekly worksheets "which provided information as to the tasks performed, as well as the amount of time needed to complete these tasks. I did not know what [Complainant] was doing every day since she was not completing her tasks...I did not want to single [Complainant] out to complete this worksheet, which is why I requested all of the Team Leaders complete the worksheet on a weekly basis." SPA stated that she noted when Complainant submitted her worksheets, her hours "would be documented incorrectly and that she was documenting large amounts of time into the miscellaneous heading. I explained to [Complainant] that she needed to prioritize her work and she should not be expending so many hours on miscellaneous tasks."
SPA stated that she noted that Complainant would provide her different explanations when she asked her why she had not met deadlines of task assigned to her. SPA stated "it appeared to me that [Complainant] always had some kind of excuse."
UC stated that on one occasion he asked SPA what tasks the Team Leaders were performing under the miscellaneous column "she did not know. As a result, the TLs were instructed to provide more detailed information as to the tasks they were performing which were included in miscellaneous, ,as well as the time spent on each one of these tasks. This request was made of all the TLs." UC stated that he had SPA prepare a work flow schedule indicating the assignments different employees "assigned to DocLab would perform. Depending on the work load and the employees reporting to work daily, this schedule could change. [SPA] was responsible for this schedule, as well as to prioritize work."
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination and retaliation.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment.
Forced Retirement
Complainant alleges that the Agency's alleged discriminatory actions forced her to retire. A fair reading of the record reveals that Complainant is alleging a constructive discharge claim. With regards to forced retirement, constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to retire from his position. Constructive discharge only occurs when the Agency's actions were taken with the intention of forcing the employee to retire. 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) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. United States Postal Service, EEOC Request No. 05900135 (June 11, 1990).
Complainant has failed to establish that her alleged forced retirement was a constructive discharge.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements 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.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
February 17, 2011
__________________
Date
1 On appeal, Complainant does not challenge the December 6, 2007 partial dismissal issued by the Agency regarding another claim (that she was subjected to harassment and a hostile work environment on the basis of retaliation when the "Successful" rating she received in her 2006 Performance Appraisal Report for the reporting of a security spill was retaliation instead of an honest assessment of her performance). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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