0120142042
09-20-2016
Pearline M.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Pearline M.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142042
Hearing No. 560-2012-00159X
Agency No. ARSILL11FEB00159X
DECISION
On May 6, 2014, Complainant filed an appeal from the Agency's April 1, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Guard at the Agency's Directorate of Emergency Services, Police/Provost Marshall Division facility in Fort Sill, Oklahoma.
On April 12, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and disability (Rhinitis, Asthma, Sinusitis) when:
1. On or about December 29, 2010, Complainant was denied a reasonable accommodation;
2. During her tenure as a Security Guard at the facility in question, on unspecified dates between March 29, 2010 and February 10, 2011, Complainant was subjected to a hostile work environment; and
3. Complainant was terminated from her position during her probationary period, effective February 10, 2011.
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). Complainant timely requested a hearing and the AJ held a hearing on March 5, 2013, and issued a decision on March 20, 2014. Specifically, the AJ found that, with regard to the denial of reasonable accommodation claim, the Agency accommodated Complainant's disability. With regard to the hostile work environment claim, the AJ found that actions complained of were insufficiently severe or pervasive to constitute harassment. Finally, with regard to Complainant's termination, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action and that Complainant failed to establish that the Agency's articulated reason was a pretext to mask discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. We note that the Agency does not contest that Complainant is an individual with a disability pursuant to the Rehabilitation Act based on her Asthma.
Complainant also must show that she is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). The term "qualified individual with a disability" is defined as an individual with a disability who, with or without a reasonable accommodation. can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). The Agency has not questioned Complainant's qualifications to perform her job. Therefore, we shall review whether the Agency violated the Rehabilitation Act by failing to provide Complainant with reasonable accommodation for her disabling condition. Complainant testified that she was assigned guard duty at one of seven gates at the facility but when she was assigned to one gate in particular, the Apache gate:
[W]ith the construction and everything that's going on out there, every time a vehicle would come through, it would be so much dirt that came up and all the dust and everything would get in my nose. The -- it would make my nose start running, I would be sneezing. My eyes would be all watery, teary. I have to cover my mouth with my scarf so I could be able to breathe properly.
Hearing Transcript p. 78.
On or about December 29, 2010 Complainant submitted a Doctor's note to her Supervisor (S1: male, Caucasian, white, no claimed disability) and another supervisor (S2: male, Caucasian, white, no claimed disability) which stated that she was being treated for allergic rhinitis, asthma, and acute sinusitis and asked that she be assigned to another gate besides the Apache gate. Counselor's Report, Attachment 6. Complainant testified that instead of transferring her to another gate she was told to wear a mask but that she did not do so because no mask was provided to her. Hearing Transcript (HT) pp. 68-9.
The AJ found that Complainant was not denied a reasonable accommodation, "rather, she did not receive the accommodation she preferred." AJ's Decision, p. 25. The AJ cited Complainant v. Department of Treasury, EEOC Appeal No. 0120132488 (October 29, 2013) (Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice.) The key issue is whether or not the accommodation is effective. Because Complainant did not attempt to use a mask she has not shown that the accommodation was not effective. Nor has Complainant shown that she notified management that the accommodation was not effective. We therefore find that Complainant abandoned the interactive process and we find no basis to disturb the AJ's finding of no denial of a reasonable accommodation.
Termination - Disparate Treatment
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
We find that the Agency articulated a legitimate nondiscriminatory reason for terminating Complainant's employment during her probationary period in its Notice of Termination During Probationary Period, dated February 8, 2011 (Notice). See Complaint File, p. 102, Bates Stamp 0001272. The Notice, signed by S2, states that the reason for the action was:
On 14 December 2010, you were extremely vocal about [S1] and [a coworker (CW)] teaching classes to new guard members. You said, "[S1] had no business instructing the new academy as he is not a certified Instructor, and that he and our management team ([CW, S1] and myself) could jeopardize our situation on [the facility]" This statement was unprofessional, and portrayed a negative attitude and a lack of respect and team unity.
Additionally, you have made numerous comments about how you are trying to "bust" [S1] to get him fired. On several occasions during the months of December 2010 and January 2011, you approached your co-workers, some more than once, asking for statements claiming that [S1] is smoking in a government vehicle. You have said you want these statements so he will be fired. Your co-workers have complained that they do not appreciate what you are attempting to do, want no part of it and feel you are harassing them as part of a personal vendetta. This behavior against your team leader is unacceptable.
Id.
The Agency having articulated a reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the agency's action was a pretext to mask discrimination, or otherwise show discrimination occurred.
Following a review of the record we find that Complainant has not met this burden. The AJ found that during the hearing Complainant admitted to many of the charges contained in the Notice. We note that during the hearing Complainant testified before the AJ that she did tell new employees that S1 was not a certified instructor and should not be instructing, see HT, p.98, and that she also sought written statements from two coworkers regarding S1 smoking in a government vehicle. See Id., p. 102. We therefore find that the AJ's finding that Complainant failed to establish that the Agency's articulated reason for its action was a pretext is supported by substantial evidence and we discern no basis to disturb the AJ's finding.
Hostile Work Environment
Complainant alleged that the following incidents created a hostile work environment:
a) On October 25, 2010, Complainant received a derogatory counseling for a dress-code violation;
b) Between October and November 2010 Complainant was removed from being in charge of a gate;
c) In January 2011 S2 and CW changed Complainant's days causing her a cut in pay;
d) Her approved leave on October 31, 2010, was retracted;
e) S1 made the comment: "better not smoke, someone might tum me in," and called Complainant a "problem child;" and
f) S1 kept assigning her to a gate that was detrimental to her health;
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
The AJ found that, with regard to the derogatory counseling, Complainant's second-level supervisor (S3: male, white, white, no claimed disability) withdrew the counseling once he found that the policy underlying it had not been vetted through the union. The AJ next found that once Complainant notified management about not being given lead duties at a gate she was once again placed in charge of a gate. With regard to the change in schedule resulting in a change in pay, the AJ found that Complainant's position description noted that hours and shifts would fluctuate, and further found that other similarly situated coworkers "also lost premium pay as a result of the normal shift rotation." AJ's Decision p. 9. With regard to the retraction of leave, the AJ found that Complainant had previously been out earlier during the month of October, 2010 and during that period the leave policy was changed so that it now required employees to fill out a formal request. When Complainant returned from her first leave period and inquired about whether she now needed to fill out forms for her upcoming request for October 31, 2010, S1 told her that he would "take care" of her request, but never did. The AJ further noted that Complainant never approached S1 to remind him or to ask if he had forgotten about her request. With regard to S1's comments about smoking and Complainant being a "problem child", the AJ found them to be "childish and base, but [they] are only words." On appeal, Complainant has not disputed any of the AJ's findings in this regard. The AJ ultimately concluded that the actions complained of were insufficiently severe to constitute harassment.
Following a review of the record, we agree. We note that Complainant's comments and testimony do not indicate that the alleged actions either involved or were based on her race, color, sex, or disability. Instead it appears that Complainant and S1, who knew each other from a previous job, had a personal conflict exacerbated by the fact that Complainant believed S1 was not qualified for certain aspects of his job, as well as the fact that S1 smoked on the job and Complainant tried to get him in trouble for doing so, which S1 may well have resented. Furthermore, with regard to Complainant being assigned to a gate that was detrimental to her health, in view of the fact that Complainant did not notify management that the mask was not an effective accommodation, we agree with the AJ that Complainant has not shown that the actions complained of, taken as a whole, were sufficiently severe or pervasive to create a hostile work environment based on race, color, sex, or disability. We therefore discern no basis to disturb the AJ's findings.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown discrimination occurred, and we AFFIRM the final order.
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
September 20, 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 As the AJ noted during the Hearing, the record utilizes a very confusing numbering system with two sets of numbers.
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0120142042
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0120142042