0120172575
07-17-2018
Shamika P.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shamika P.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120172575
Hearing No. 570201500416X
Agency No. 9O0D14001
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, from the Agency's Final Order2 concerning an 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.
At the time of events giving rise to this complaint, Complainant was, employed by the Agency, subject to a one year probationary period, as a Community Readiness Consultant, GS-09, at its 48th Fighter Wing Force Support Squadron ("48th FW/FSS") Airman and Family Readiness Center ("A&FRC") on Lakenheath Air Force Base in the United Kingdom.
On January 15, 2013, Complainant filed an EEO complaint alleging harassment and discrimination by the Agency on the basis of race (African American) when:
1. On August 5, 2013, her supervisor ("S1") subjected her to harassment by:
a. Subjecting her to a double standard by blaming her for not accomplishing tasks necessary to ensure she could go on Temporary Duty ("TDY"), and
b. Questioning her ability to handle duties associated with the Transition Assistance Program ("TAP").
2. She was subjected to disparate treatment when:
a. On November 06, 2013, S1 outlined 7 issues she had with Complainant,
b. On unspecified dates, her coworker ("C1") consistently failed to train her and openly communicated with her on important aspects of her job,
c. On an unspecified date, C1 denied her the opportunity to perform her full range of duties by putting up road blocks, such as preventing Complainant from scheduling members for TAP and Capstone events, and
d. On February 26, 2014, her third level supervisor ("S3") terminated her employment during her probationary period.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its Final Order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's Final Order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("EEO-MD-110"), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus.
Claim 1: Harassment
Complainant's two harassment allegations, even when considered together and assumed to have occurred as described by Complainant, are "common workplace occurrences." See Goines v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006), Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998). Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass complainant on the basis of a protected class, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Goines (other citations omitted); see also Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994), Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999).
Other than bald assertions, Complainant does not provide evidence in the record or on appeal that would give rise to a question of material fact. We note that Complainant challenges the AJ's factual findings for Claim 1(a) by arguing that Management, not Complainant, failed to accomplish the necessary tasks to ensure she could go on TDY, because S1 and S2 "willfully" lacked the leadership to obtain the necessary funding, resulting in cancellation. While this may speak to the severity of the alleged harassment, Complainant has not shown a question of material fact exists to indicate the Agency's alleged discriminatory motive. The allegations described in Claim 2(a), a supervisor questioning an employee about their duties is a common workplace occurrence, and on appeal, Complainant does not offer sufficient evidence that the alleged action is hostile, nor does she address the necessary element of discriminatory motive.
As Complainant has not offered evidence that could demonstrate a question of fact exists on whether the alleged harassment in Claim 1 meets the requisite severity and discriminatory motivation to constitute harassment, we find summary judgment was appropriate.
Claim 2: Disparate Treatment
For Complainant's disparate treatment claim to prevail, she 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792 at 802 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the action at issue, the factual inquiry can proceed directly to the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Coe v. Dep't of Homeland Sec., EEOC Appeal No. 0120091442 (Oct. 7, 2011); Kaftanic v. United States Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988). Office of Personnel Management ("OPM") regulations provide that if at any time during the trial period, a probationary employee's conduct fails to demonstrate his or her fitness for continued employment, he or she may be terminated by written notice explaining the reason for separation and the effective date of the action. See 5 CFR � 315.804(a). Thus, probationary employees are not entitled to the same notice and opportunity to respond to a proposed termination as non-probationary employee, and an Agency need not show "cause" for terminating an employee during their probationary period. See Harmon v. Dep't of Commerce, EEOC Appeal No. 01A33155 (Sept. 11, 2003) other citations omitted. Likewise, there is no expectation that a probationary employee would be subject to the same disciplinary action as a non-probationary coworker, even if they committed the same infraction. See Tristan W. v. United States Postal Serv., EEOC Appeal No. 0120152084 (Jul. 11, 2017).
Here, the Agency's articulated legitimate nondiscriminatory reasons for the alleged disparate treatment in Claim 2 concern Complainant's professionalism, performance and her status as a probationary employee. According to the February 26, 2014 termination notice, referenced in Claim 2(d), Complainant's employment was terminated because she "exhibited multiple instances of unprofessional behavior and failure to follow the specific instructions of [her] supervisor." Complainant disputes or provides context for some (but not all) of the issues described in the notice, and in S1's list of "issues" referenced in Claim 2(a). As evidence, Complainant cites conflicting testimony in the record relating to alleged customer and coworker complaints about her, and offers examples and witnesses that can attest to her professional demeanor. Complainant also contends that S1 solicited other employees and customers to submit negative feedback about her, and that S1 blamed her for administrative error beyond her control. However, the record also contains several undisputed instances when Complainant exhibited unprofessional behavior, and failed to follow her supervisor's instructions.
On appeal, Complainant has not demonstrated that the Agency's legitimate nondiscriminatory reasons were pretext for discrimination, warranting a hearing. For instance, she has not identified a "similarly situated" probationary employee outside her protected class. See. e.g., Reardon v. United States Postal Serv., EEOC Appeal No. 0120071576 (June 4, 2009); EEOC Compliance Manual, Section 604, Theories of Discrimination (Jun. 1, 2006) (individuals will qualify as comparators only where they reasonably can be expected to receive the same treatment in the context of the employment-action at issue). Complainant's conclusory statements alleging pretext, including those in which she recollects a few fleeting statements by S1, are insufficient to establish pretext, considering the evidence of record and her probationary status.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ 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 Order adopting the AJ's 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 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).
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
July 17, 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 submitted her appeal to the Commission before the Agency received the AJ's decision. However, we have exercised our discretion to deny the Agency's request that we dismiss Complainant's appeal as premature and reviewed the matter upon receipt of the Agency's appellate materials.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172575
6
0120172575