0120162451
06-05-2018
Nenita S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nenita S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162451
Agency No. ARPINEB14MAY01758
DECISION
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 June 13, 2016, final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-07 at the Agency's U.S. Army Garrison Arsenal facility in Pine Bluff, Arkansas.
On June 5, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (50) when:
1. On April 28, 2014, Complainant's team leader spoke to her in a degrading manner;
2. On April 28, 2014, the team leader required her to use a sign in and out board; and
3. On May 15, 2014, the team leader spoke to her in a loud and rude manner, that embarrassed her in front of her coworkers and caused Complainant to leave work early.2
The pertinent record shows that Complainant was a recent hire to the Agency. During the period at issue, Complainant reported to the Human Resources (HR) Specialist (RMO1) (female), and the Supervisory HR Specialist, (Caucasian female) (RMO2) was her second level supervisor. Her complaint allegations focused on actions by the Team Leader (Caucasian male) (RMO3).
When she first reported in on April 23, 2014, Complainant saw a welcome basket on her desk. Complainant acknowledged that she initially thought, that "this is going to be a wonderful place to work," She introduced herself to the Director (Caucasian female) and met her first level supervisor and second level supervisors (Caucasian females).
The next day was April 24, 2014. It was her first full day of work. When she came in, no one else was around. She said that a card had been attached to the basket that said, "No complaining." She also noticed that she had not yet been given access to her computer or emails.
On her second day, Complainant informed a co-worker that she was leaving the office to go to enroll her children in school. She asked the coworker to let the supervisor know. When Complainant returned, she was told by the team leader that she needed to wait until one of the supervisors showed up, before leaving. Complainant told the team leader that she had waited until 0700, but no one had showed up. He told her that he worked a different schedule and comes in later.
April 28, 2014 was the third day of her employment. Complainant claimed that she had to bang on the door to gain entry. The team leader told Complainant that it was not his job to open the door for her. The team leader next convened a section meeting.
During the meeting, the team leader imposed the use of a sign in / sign out board for the section. The team leader averred that he used the board for accountability purposes. In addition, Complainant was told that all of the supervisor's subordinates were required to apprise the supervisor of their whereabouts by either the Accountability Board or via an email or phone for those not in the same location.
The record shows that management had used the board in the past and management re-implemented it on April 28, 2014. Management did not use the board for other sections, located on different floors. Complainant's section was comprised of three individuals, all African-American. Two were women and one was male.
The evidence showed that the team leader conceded that he "made statements which were "very direct, and loud." He said, "this is basically what you are going to do and this is how you're going to do it and I need this done." He also told Complainant and the other newly hired employee that they had missed "suspense dates" and were not responding to his emails.
Complainant then went into the Director's office and told her that she would be leaving for the rest of the day, as she could not work under these circumstances. She reached the Deputy Director, instead, who asked Complainant to put her complaints in writing.
Complainant wrote that she had been asked to utilize unofficial compensatory time, was disrespected by a fellow employee, and nothing was done after she reported that she had witnessed fraud, waste and abuse in duty hours.
On May 15, 2014, the team leader criticized Complainant regarding a referral for a Supervisory Contract Specialist. The team leader told Complainant that she failed to follow his instructions to place the college hours in the notes. Complainant responded, telling the team leader that she had checked each applicant appropriately.
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 (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found "the record demonstrates the occurrence of two verbal incidents by one non-supervisory team leader during a 17-day period" and that "only one incident was directed specifically toward the Complainant, while the other occurred in the context of a staff meeting for the entire team." The Agency concluded that "the totality of the record evidence did not support an inference that a reasonable person would find the proven actions to be sufficiently severe or pervasive to create a hostile work environment and thereby affect a term or condition of employment." The Agency also found that "nothing in the record demonstrated that the incidents were motivated by the Complainant's protected bases." Consequently, the Agency reasoned that Complainant failed to establish discrimination or employer liability.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission consider her subsequent complaint as proof of the discrimination at issue in this appeal. She disputes the Agency's reasoning that the incidents at issue over a 17-day period was not enough to establish a hostile work environment. She questioned the impartiality of the investigator and restates her claim that after she reported a violation of the Merit Systems Principles, she was subjected to the disciplinary actions that are the subject of her later complaint.
The Agency asserts that Complainant has offered only her subjective comments and her evidence pertains to her subsequent complaint, which is not before the Commission in this appeal.
ANALYSIS AND FINDINGS
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").
She claimed that, during two meetings, she was subjected to discrimination by the Team Leader (Caucasian, male) based on her race, sex and age. In one of the two meetings, Complainant was criticized for her work. The other comments were directed to the employees in the section.
Section 717 of Title VII and Section 633(a) of the ADEA require that federal agencies make all personnel actions free of race, sex, or age discrimination. See 42 U.S.C. 2000e-16(all personnel actions in federal employment "shall be made free from any discrimination" based on sex and race); 29 U.S.C. � 633(a) (all personnel actions in federal employment "shall be made free from any discrimination" based on age"). Reprisal is also unlawful under Title VII.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We will assume for purposes of our analysis that management was aware of her sex, race, and age when Complainant was required to use the sign in board and when she was criticized.3 In this case, however, we find that the record does not substantiate the claims of race, sex or age discrimination. There is no evidence that others who were similarly situated were treated better.
Specifically, we find that the record evidence does not support her claim that, she was directed to use a sign in board, or was criticized by the team leader, due to her race, sex or age. Everyone in her section was subjected to the same treatment, including a male employee.
In addition, the responsible management officials articulated legitimate, non-discriminatory reasons for each of its actions. Management imposed the sign in board for accountability purposes at that location and on that floor. Although Complainant believed the criticism was unwarranted and unfair, the record supports the Agency's articulated reason. The Agency exercised its managerial authority to determine the procedures applicable to her position to better serve its needs.
For these reasons, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's proffered reasons were a pretext for unlawful discrimination. Stated differently, she did not show that the Agency failed to make its actions free of discrimination through evidence proving that a protected basis - in this case, that her race, sex or age was a factor in its decisions.
Harassment
To establish a claim of hostile environment harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep't of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016).
In other words, 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.
We note that Complainant perceived the alleged events to be hostile and that she disagreed with the Agency's reasoning for her change in duties. However, although Complainant asserted that she was subjected to harassment based on her race, sex and age, she provided insufficient evidence to show that the alleged incidents were severe or pervasive or occurred as she stated or that the incidents occurred because of the protected bases alleged in her complaint.
Therefore, based upon our review of the record, we find that Complainant has not met her burden of establishing that the alleged events occurred because of her protected bases and / or prior EEO. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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.
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 5, 2018
__________________
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 Complainant filed a subsequent complaint ARPINEB15APR01414, which is not before us in this appeal and which pertained to incidents occurring after the incidents at issue in this appeal.
3 Reprisal is not an alleged issue. Further, at the time that Complainant saw the note on her basket saying "no complaints," she did not have any prior EEO activity.
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