0120150892
08-11-2016
Shalon C.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shalon C.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120150892
Hearing No. 443-2014-00144X
Agency No. 201325227FAA04
DECISION
On December 30, 2014, Complainant filed an appeal from the Agency's December 10, 2014, 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
Whether the Agency discriminated against Complainant on the basis of reprisal for her prior EEO complaint when it subjected her to a hostile work environment since August 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist (ATCS) at the Agency's Sioux City Air Traffic Control Tower in Sioux City Iowa. In August 2012, Complainant initiated EEO counseling and subsequently filed an EEO complaint.2 Complainant stated that there was a general knowledge in the office that she filed her complaint. She alleged that since then, she was excluded from meetings; isolated and shunned by her coworkers; and locked out of the union office, and denied a key.
In October 2012, Complainant requested to be removed from ATCS duties, and was soon medically disqualified to be an ATCS due to the medication that she was taking. Complainant was given administrative duties, in lieu of her air traffic control duties, and worked on a different floor. Complainant stated that she mostly self-studied, and had not been given meaningful work. She also stated that during this time, her name was omitted from the daily schedule, and that she needed to manually add her name.
On February 14, 2013, Complainant alleged that she went to the break room to use a computer, but was prevented from doing so by a coworker (C1) (unknown prior EEO activity). Complainant stated that C1 told her to go to another computer, but allowed another coworker, who had immediately came into the break room behind her, to use the computer.
On June 28, 2013, the Acting Terminal District Manager (ATDM) (unknown prior EEO activity) issued Complainant a proposed 3-day suspension for Inattention to Duty. During an internal investigation into alleged misconduct at the facility, Complainant provided a statement attesting to the fact that she read books and used her cell phone while on duty. The ATDM also gave 14 other employees discipline, including suspensions, demotions, and proposed removals for their behavior, based on the findings of the investigation. Complainant was ultimately issued a Letter of Reprimand.
In July 2013, Complainant alleged that her supervisor (S1) (prior EEO activity as a management official) called her a "narc" when he saw her in the elevator. She reported this incident to another supervisor (S2) (prior EEO activity as a management official), who contacted the ATDM. Soon afterwards, Complainant's second line supervisor was changed to (S3) (unknown prior EEO activity). On August 28, 2013, Complainant stated that when she asked C1 where she could find the approach plate book, he ignored her, which prevented her from doing her duties. In November 2013, Complainant returned to her ATCS duties, and was informed that she would need to retake training. Complainant alleged that when she returned to air traffic control duties, her coworkers would put on sunglasses when she entered the room; her coworkers glared at her; and C1 stared at her during her training sessions.
On October 6, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for filing her August 2012 EEO complaint when it subjected her to a hostile work environment. Examples of the alleged harassing conduct included:
1. She was routinely omitted from meetings;
2. Since December 2012, she had not been assigned meaningful work;
3. Coworkers and managers glared at her, shunned and isolated her;
4. She was frequently omitted from the daily schedule, and had to manually add her name so that she could sign in;
5. On February 14, 2013, she was prevented from using the break room computer;
6. On June 28, 2013, she was issued a proposed 3-day suspension;
7. In July 2013, she was called a "narc" by S1;
8. She was prevented from doing her assignments; as an example, on August 28, 2013, C1 refused to tell her where the approach plate book was kept, thereby hindering her from completing her assigned task of changing out approach plates;
9. She has been locked out of the union office and denied a key;
10. Effective November 13, 2013, she was forced to start anew with her training.
On March 7, 2014, Complainant informed the Agency of additional incidents of alleged harassment:
1. On February 23, 2014, she was confronted by a coworker (C2), who asked her, "you know ground is open?"
2. On, February 27, 2014, S1 and a trainer informed her that C2 reported a complaint about her, alleging that she lacked the ability to take direction, in front of another employee;
3. On March 6, 2014, when C2 realized that he would be working alone with her, S1 called her to tell her to take a break until another ATCS returned, so that she and C2 were not alone; and
4. Also on March 6, 2014, S3 stated to Complainant that she needed to "quit playing the victim;" that he was not a "kangaroo boss," and would not jump in to resolve every problem; and that she needed to rebuild trust with her peers.
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. 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
While the Agency found that Complainant had engaged in prior EEO activity, and that her managers were aware of her EEO activity, it found that she had not shown that the complained of conduct was based on her protected basis, or that it unreasonably interfered with her work performance and/or created an intimidating, hostile, or offensive work environment.
With respect to claim 1, S1 stated there are no staff meetings, but that meetings were occasionally held for those in operations, but after Complainant stopped working in air traffic control, she was not included in those meetings because she was no longer in operations. S2 stated that management officials had regular staff meetings, but that Complainant would not be included in those meetings. S2 also stated that Complainant had not been excluded from any training sessions.
For claim 2, S1 stated that it was hard to find tasks for Complainant; and S2 stated that there was not always work for Complainant to do, given her skill level, and that they were unable to create work for her to do. While Complainant alleged that other ATCSs who were taken off air traffic control duties were provided meaningful work, such as updating standard operating procedures, or conducting training, she was denied the same opportunities. However, S1 stated that Complainant was not a Certified Professional Controller (CPC), and that the named comparators were CPCs, and had more work options available to them.
For claim 3, the Agency found that Complainant had not provided any corroborating evidence that she was shunned by her coworkers. S1 stated that Complainant sequestered herself by going to work on another floor, and locking the door. S3 also stated that he had seen Complainant isolate herself, and that she did not interact with others very much. With regard to employees wearing sunglasses, S1 stated that the ATCSs work in a room with windows 360 degrees around the tower, and that it was routine for the ATCSs to wear sunglasses to deal with the glare from the sunlight.
With respect to claim 4, S1 stated that the ATCSs use the CRU-ART system to log in and out, and that the administrative side uses the CRU-SUPPORT system. S1 stated that when Complainant was not working in operations, she was not in the CRU-ART system, but in the CRU-SUPPORT system. S3 stated that employees need to manually input their names into the CRU-SUPPORT system.
For claim 5, S1 stated that C1 did not allow Complainant to use the computer in the break room because he was using it at the time and that there were two other computers that Complainant could have used. For claim 6, the ATDM stated that Complainant received discipline, along with 14 other employees, following the conclusion of the Agency's investigation into alleged misconduct. Complainant was issued a proposed suspension because she had admitted to reading, and using her cell phone while on duty. In regards to claim 7, S1 denied calling Complainant a "narc," and Complainant had not provided any corroborating evidence showing that he did.
For claim 8, S1 stated that C1 was working position at the time, and could not assist her; and that Complainant had worked at the facility for over five years, and should be familiar with where the approach plates were kept. For claim 9, S1 stated that the union officials use the room, and believed that it was usually locked, except for when it is being used. For claim 10, S3 stated that since Complainant had not worked as an ATCS for over a year, she was required to attend training again, per Agency policy.3 The Agency concluded that Complainant had not shown that she was subjected to a hostile work environment based on reprisal for her prior EEO activity.
Complainant filed the instant appeal, but did not submit a brief in support of her appeal. The Agency filed an opposition brief on March 3, 2015, asking that the Commission affirm its final decision.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Harassment
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, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment 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 her 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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
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, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). 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.
In this case, we find that Complainant has not shown that she was subjected to a hostile work environment based on reprisal for her prior EEO activity. As discussed above, for claims 1, 2, 4, 6, and 10, the Agency articulated legitimate, non-discriminatory reasons for its actions. Complainant has not shown that the proffered reasons are pretext for discrimination, and as such, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected basis. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Additionally, for claims 3, 5, 7, 8, and 9, even assuming that the events occurred as alleged, Complainant has not shown that they had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. We note that the Agency did not address the additional incidents of alleged harassment raised on March 7, 2014. However, even crediting Complainant's account of these events, we find that in looking at the totality of the circumstances, a reasonable person would not find her work environment to be hostile or abusive. Accordingly, we find that Complainant has not shown that the Agency discriminated against her on the basis of reprisal for prior EEO activity when it subjected her to a hostile work environment.
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 finding that Complainant has not shown that the Agency discriminated against her on the basis of reprisal for prior EEO activity when it subjected her to a hostile work environment since August 2012.
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
__8/11/16________________
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 This discrimination complaint is the subject of EEOC Appeal No. 0120141603.
3 Agency Order JO 3120.4N states, "Personnel who have not worked an operational position for 1 year or more must receive instructor-led, simulation and OJT prior to recertification. OJT hours must not exceed 100 percent of the target hours established for developmentals with no previous experience."
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