Rochelle F.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180120170167 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rochelle F.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120170167 Hearing No. 570-2014-00239X Agency No. ARHQOSA12SEP03799 DECISION On October 4, 2016, 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 August 30, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race and/or sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civil Engineer, GS-0810-14, in the Agency’s Construction Management Branch in Washington, D.C. Complainant is a Black female. Complainant’s first-line supervisor was the Construction Management Branch Chief (S1, White female), her second-line supervisor was the Construction 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. 0120170167 2 Division Deputy Chief (S2, White male), and her third-line supervisor was the Construction Division Chief (S3, Black female). S1 rated Complainant as Level 2 on her performance appraisal for the period from July 1, 2011, through June 30, 2012. Level 1 was the highest possible rating, and Level 5 was the lowest possible rating. S1 stated that to receive a Level 1 rating, an employee needs to go the extra mile. S1 averred that Level 2 was an appropriate rating for Complainant because she was late on two congressional notifications, because she turned in a report that was not adequately researched, and because Complainant failed to communicate with her during her telework days. Complainant alleged that her White male colleagues all received a Level 1 rating. S1 stated that Complainant’s four White male colleagues deserved their Level 1 ratings because of their work. According to Complainant, she was surprised by her Level 2 rating because she exceeded all of the objectives in her performance standard and because S1 expressed satisfaction with her performance during the mid- year performance review. Complainant stated that during the mid-year review the only area for improvement S1 identified was communication. According to S1, during the mid-year review she told Complainant that she needed to do more to assist her coworkers. On August 15, 2012, Complainant met with S1 and S2 and expressed her dissatisfaction with her performance evaluation. Complainant averred that S1 cited three reasons for her rating: (1) she asked S1 a question that was inappropriate for a GS-14 level employee; (2) she was late on two congressional notifications; and (3) her teammates asked her for assistance with a task, and she refused to help. Complainant stated that she asked S1 for information because her predecessor did not leave sufficient records for her to assume certain projects. Complainant alleged that she was not the only employee to have late congressional notifications and that hers were late because she received late information from the Army Corps of Engineers. Complainant denied refusing to help her colleagues and noted that assisting teammates was not in her performance objectives. Complainant alleged that S1 also subjected her to a hostile work environment. S1 denied subjecting Complainant to a hostile work environment. Complainant stated that she and S1 have been at odds with each other throughout their working relationship and that S1 is responsible for their hostile relationship. Complainant stated that S1 was more respectful towards her White male coworkers. According to Complainant, S1 falsely accused her of disrupting the workplace. Complainant averred that she complained about the hostile work environment to S2 and requested to be moved out of the workplace. S2 stated that he did not learn about Complainant’s allegations until after a March 2013 mediation. Complainant stated that she requested to relocate to an office in Crystal City, Virginia, but that S3 denied her request. S3 stated that Complainant had not requested to relocate to a different workspace. On November 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and sex (female) when, on July 28, 2012, she learned that her supervisor had rated her as a Level 2 (Excellence 25 to 74 percent of objectives) rather than Level 1 (Excellence 75 percent or more of objectives) for the performance rating period from July 1, 2011, through June 30, 2012. 0120170167 3 During the investigation, Complainant amended her complaint, alleging that the Agency discriminated against her on the bases of race and sex when S1 subjected her to a hostile work environment. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s final decision found that Complainant failed to establish that management’s legitimate, nondiscriminatory reasons for issuing her a Level 2 rating were pretextual. The Agency also found that Complainant failed to establish a prima facie case of a hostile work environment because the alleged harassment did not alter the terms or conditions of her employment and because there was no evident connection between the alleged harassment and her race or sex. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that she established that the Agency’s legitimate, nondiscriminatory reasons for rating her as Level 2 were pretextual because they were not believable in light of the evidence in the record. Complainant also contends that she established that the alleged harassment changed the terms and conditions of her employment because S1 micromanaged her despite the performance standard for GS-14 engineers of independent work. Complainant requests that the Commission reverse the Agency’s final decision. In response to Complainant’s appeal, the Agency contends that Complainant failed to establish that she was subjected to a hostile work environment or that its proffered legitimate, nondiscriminatory reasons for her rating were a pretext for discrimination. The Agency requests that its final decision be affirmed. 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”). 0120170167 4 Disparate Treatment Complainant alleged that she was discriminated against based on race and sex when she was rated as Level 2 on her performance appraisal. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reasons for issuing Complainant the Level 2 rating were her failure to go above and beyond expectations, her late congressional notifications, her submission of an inadequately researched report, and her resistance to assisting her coworkers. We find that Complainant has failed to establish by the preponderance of the evidence in the record that the Agency’s legitimate, nondiscriminatory reasons are a pretext designed to mask discrimination based on race or sex. Therefore, Complainant has failed to establish that she was subjected to disparate treatment. 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). The harasser’s 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 at 6 (Mar. 8, 1994). 0120170167 5 Here, there is no evident connection between the alleged harassment and Complainant’s race and/or sex. Moreover, we find that the alleged harassment, which appears to consist of ordinary supervisory oversight and trivial disagreements between Complainant and S1, is insufficiently severe or pervasive to constitute a hostile work environment. Accordingly, Complainant has failed to establish by the preponderance of the evidence in the record that she was subjected to a hostile work environment based on race or sex. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance of the evidence in the record does not establish that discrimination occurred. 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 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. 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). 0120170167 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 October 31, 2018 Date Copy with citationCopy as parenthetical citation