0120140549
06-08-2016
Meaghan F.,1 Complainant, v. G. Wayne Clough, Secretary, Smithsonian Institution, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Meaghan F.,1
Complainant,
v.
G. Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120140549
Agency No. 13-05-021503
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 24, 2013 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.
BACKGROUND
During the period at issue, Complainant worked as an Associate Director (AD) of Occupational Safety, GS-15, at the Agency's Office of Safety, Health and Environmental Management (OSHEM) in Washington, D.C.
On February 15, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
between June 8, 2011 and February 14, 2013, her supervisor consistently usurped her authority, spoke to her in a rude and disrespectful manner, and consistently subjected her to open-ended threats.
After the investigation of the claims, 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 October 24, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its October 24, 2013 final decision, the Agency found no discrimination had been established. The Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. Complainant submitted no argument on appeal.
ANALYSIS AND FINDINGS
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).
During the investigation into Complainant's allegations of harassment due to sex and/or retaliation for prior EEO activity, the evidence showed that Complainant started in her position as Associate Director of Occupational Safety on June 5, 2011. The Director of OSHEM ("the Director") was her immediate supervisor and the person she alleged was responsible for the discriminatory and/or retaliatory harassment. Complainant began a log documenting the Director's alleged harassment three days after she assumed her position.
Complainant alleged that the Director usurped her authority when he did not allow her to discipline one of her subordinates and disagreed with her about not nominating this same employee for an award. She also alleged that he met with her employees after hours when she was not present. She also alleged that he periodically was rude to her and yelled at her, and would comment on the need to do things the "Smithsonian way" rather than the "Navy way," a reference to her former employment at the Navy. She also alleged that in July 2013, he told her that she needed to watch her attitude or he would take action against her.
The Director responded in regard to Complainant's allegation that he conducted meetings with her staff after she leaves for the day, usurping her authority and enabling certain staff members to become his source of information. Specifically, he stated, "I work routinely after 1800 hours every day, as do the AD for Fire Protection Engineering and various members of the staffs of all three Divisions. No meetings, formal or informal, are scheduled at this time. As I encounter staff in walking the work area, they often will have chance questions, comments or observations that I am always available for and happy to address."
Regarding Complainant's allegation that on June 22, 2011, when she missed a METR closing conference the Director yelled at her saying she cannot miss the important meetings, he said that "the METR closeouts are cardinal events - direct face to face meetings with museum Directors and their senior staff who are Senior Level in rank. When we have prepped for these sessions on the basis the ADs will be present and will be the presenters in their technical areas, it is a disservice to staff (or one of the other AD's) when the AD has to cancel or not show up with no or little notice. I deny yelling or screaming. I am direct and to the point when explaining the importance of these sessions and of providing timely notice if some unforeseen event occurs precluding an AD's personal participation."
Regarding Complainant's allegation that on August 2, 2011, the Director harassed and threatened her about signing for a key, he stated, "I deny this allegation as it is an exaggeration of a very simple incident - I find it puzzling as to why or how, in less than two months, [Complainant] would have believed it necessary to precisely catalog events of this nature and intend, evidently, to use them to characterize the work environment as unfair or unreasonable in the organization she had, upon being accepted to the position, thanked profusely for hiring her...as I recall, there had been multiple request from the OFEO key custodian for a signature from the new occupant. I had advised [Complainant] of these, and whatever the date was, personally requested she sign for the key. No harassment, no threat or intimidation was involved, but parsing of words on [Complainant's] part might be. It was/is a matter of fact that the locksmith shop requires custodial signature for all keys."
Regarding the Complainant's allegations concerning her subordinate employee, the Director stated that it is his policy that Associate Directors discuss any proposed disciplinary action with him first. He said that he believes that disciplinary action could have instant negative results in small staff with a long standing working relationship such as his. The Director stated that on one occasion, Complainant notified him that she was again having issues with her subordinate employee and that she intended to counsel her. Further, the Director stated that Complainant "appears to have continuing disagreement and dislike for the subordinate, bordering on personal and certainly not professional. This is often sensed and observed by OSHEM staff who have commented on it numerous times verbally and in writing. Again, I explained that to [Complainant] and that that was not just my observation, but that of numerous of her staff and other Division Staff. It was/is my continued hope that she will keep focused on the big picture with the major projects and efforts that her Division works and that she is accountable for, (as am I, at the Director level). The fact remains that [subordinate] is central to the most important of those, the Safety Culture Initiative and [Complainant's] continued negative leadership and relationship are deleterious and undermining that effort as well as the morale of her unit. There was/is no favoritism, but there is a lot of involvement with the substance of what [subordinate] is charged with. She can use all the help she can get and particularly that of her supervisor [Complainant]. My advice to her was/is the purpose of this Office is to serve the SI [Smithsonian] with the best efforts it can, not provide a battleground for competing personal differences." The Director also stated that he advocated for the subordinate to receive a cash award for her work organizing, structuring and publicizing an OSHEM sponsored event.
Regarding Complainant's allegation that during the November 2011 time period that she informed the Director she was taking disciplinary action against the subordinate for her bad behavior and unprofessional attitude and was prevented her from doing so, the Director stated "this is another instance in which [Complainant] unilaterally, without indication, decided culpability/guilt and elected a punitive action with no discussion of underlying issues with me before doing so, which is my policy. We have and have had since my arrival virtually no formal disciplinary actions in OSHEM. My policy is that if any of my staff are having issues with employees that might or could involve disciplinary action, they discuss them with me so we can explore all solution options at the lowest level first. Disciplinary actions in this small unit, in which most staff have long term mutual working relationships can have instant negative organizational reaction. Again, I cannot retrieve the exact words in the conversation, but the threatening nature of what is quoted is not my style."
Regarding Complainant's allegation that during the August 2012 time period the Director came to her office and told her to get in the conference room for a teleconference but she told him she had cancelled the teleconference because the contractors were not prepared, the Director denied Complainant's characterization of the incident. He stated "there was a call to [contractor] scheduled and they were on the phone, regardless of what [Complainant] thinks she recalls cancelling. After [subordinate] had gone to [Complainant's] office to advise her and she had not appeared, I then went to her office, stood in the hallway outside and said, 'look let's get to this phone call, people are waiting and this is your initiative.' [Complainant] slammed down a bunch of papers, got up, stormed around her desk and did drop an F-bomb, but actually screamed, 'this is isn't my 'f-ing' project.' I stated 'it most certainly is and this is part of it.' She stormed down the hall to the conference room. There was no physical contact between us, never has been and never will be [emphasis in its original]."
The Deputy Director, Office of Facilities Engineering and Operations, stated that he is Complainant's second level supervisor. With respect to Complainant's allegation that she sent an email to the Deputy Director asking him to stop the Director's harassment, the Deputy Director stated, "after receiving [Complainant's] email and listening to rumors, I decided that enough was enough and I thought we needed to have a meeting and clear the air. Yes, I spoke for 15 minutes, not in a military dress down style, but direct and to the point. I told [Complainant and the Director] that they are both supervisors, one a Senior Leader (SL) and one a GS-15, who have offices right next to each other. I reiterated to them both what my expectations were and that we needed to focus on the business of the Smithsonian." The Deputy Director stated that during the relevant period, he never witnessed the Director subjecting anyone to harassment or intimidation.
With respect to Complainant's allegation that the Deputy Director threatened her with a poor performance rating for bringing allegations of harassment to him, the Deputy Director denied it. The Deputy Director stated, "I never threatened [Complainant] with a poor performance rating for bringing allegations of workplace harassment since I did not know about a formal complaint and any harassment allegations are required by the individual and the leadership to be referred to OEEMA for action. There was no threat of any type, harassment or performance."2
Further, the Deputy Director stated that employees "were coming to senior leadership (myself and [female Agency official]), some saying that it was hard to work for [the Director] and some saying it was hard to work for [Complainant]. This type of environment is not in the best interest of the Smithsonian...I want to ensure that it is dealt with swiftly and correctly and that our supervisors and employees are getting guidance from the right personnel. I believe that everyone should be able to work in an environment free from any type of harassment. It will not be tolerated here at the Smithsonian."
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 basis -- in this case, because she was female and/or retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her sex or her prior protected activity. Complainant's own testimony, as well as the statements by her supporting witnesses, was that the Director was rude and difficult to many employees, both male and female. With regard to her retaliation claim, the Director averred that he was not aware of Complainant's prior EEO activity until after she filed the instant complaint, and after all the events she proffered in support of her harassment claim. There is no evidence of record to dispute this claim.
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.
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 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
June 8, 2016
__________________
Date
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.
2 OEEMA is an acronym for Office of Equal Employment and Minority Affairs.
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