0120142455
08-25-2016
Stella K.,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
Stella K.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120142455
Hearing Nos. 480-2012-00400X and 480-2012-00590X
Agency No. 2011-23895-FAA-06
DECISION
On June 30, 2014, Complainant filed an appeal from the Agency's May 26, 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. 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 Assistant at the Agency's Office of Security and Hazardous Materials facility in Lawndale, California.
On July 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. She received an inaccurate mid-year evaluation on June 1, 2011.
2. Her supervisor (Supervisor) required her to notify him when away from her desk for any amount of time.
3. She received a 14-day suspension, effective March 7, 2011 to March 20, 2011.
4. From March 21, 2011 to June 21, 2011, she was placed in Absent Without Leave (AWOL) and Leave Without Pay (LWOP) status.
The Agency accepted the complaint and conducted an investigation. In brief, the investigation revealed the following facts.
The Supervisor stated that he was aware of Complainant's prior EEO activity. He said that he testified at a hearing on her prior EEO complaint in July 2007. He also said that he was aware that she sought EEO counseling for the instant complaint on or around March 25, 2011.
In May 2010, the Supervisor tasked Complainant with entering data into the SHOES (Suspected Hazardous Objects Encountered in Screening) website from reports of hazardous materials in the possession of passengers revealed during the screening process. Both the Supervisor and a Special Agent showed Complainant how to enter the data.
In October 2010, the Supervisor instructed Complainant to enter 50 reports per day into SHOES. However, between October 19 and November 8, 2010, Complainant entered zero reports. Complainant was provided with additional training on SHOES by the Supervisor. In November 2010, Complainant was again instructed to enter 50 reports per day, and that number was increased to 75 reports per day in December 2010. Between November 9 and 19, 2010, Complainant entered 28 reports. Complainant continued to fail to meet the 75-report goal.
During the same time period, the Supervisor stated that Complainant would frequently be away from her desk, sometimes for hours without explanation. Therefore, she was required to notify him when away from her desk for more than 10 or 15 minutes. In March 2011, Complainant was suspended for her failure to carry out the instructions and assignments given to her, including the instruction to enter 75 reports per day into SHOES. The June 2011 mid-year evaluation reflected the Supervisor's concerns about Complainant's work performance.
Following the end of her suspension on March 20, 2011, Complainant did not return to work, instead calling in sick. On April 8, 2011, the Supervisor received a request from Complainant for a two-week extension of her sick leave, and then later further requests for leave under the Family and Medical Leave Act (FMLA). Complainant did not return to work until September 29, 2011. During this period, the Supervisor requested a variety of medical documentation to justify the leave. There was considerable back and forth communications regarding the documentation and its adequacy. Due to the Supervisor's belief that some of the documentation was inadequate, Complainant was placed in AWOL/LWOP status from March 21 to June 21, 2011. When Complainant returned to work in September with further documentation, the AWOL was converted to approved leave.
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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
As an initial matter, the Agency dismissed allegations (1) and (2). The Agency noted that Complainant was removed from employment with the Agency effective February 27, 2013. She appealed the Agency's termination action to the Merit Systems Protection Board (MSPB). The MSPB Administrative Judge issued a decision on October 30, 2013, upholding the Agency's action.
The Agency noted that in support of the termination, it raised Complainant's claims that she was not provided proper training in entering data in the SHOES system. The Agency noted that Complainant's claim regarding allegation (1) was that she was issued the negative mid-year evaluation based on the Agency's failure to provide her with proper training. Further, with regard to allegation (2), the Agency indicated that Complainant's failure to carry out orders such as this one was part of the Agency's charges supporting the termination action. The Agency noted that the MSPB upheld these charges by the Agency. Therefore, the Agency determined that events (1) and (2) had already been addressed by the MSPB and Complainant was precluded from raising these events based on the doctrine of res judicata.
The Agency then turned to Complainant's claim of harassment based on allegations (3) and (4). The decision concluded that Complainant failed to prove that the Agency subjected her to these events due to her prior EEO activity. As such, the Agency held that Complainant failed to show that she had been subjected to retaliatory harassment.
This appeal followed. On appeal, Complainant asserted that the Agency's dismissal of allegations (1) and (2) was not appropriate and that these events were critical to establishing that she had been subjected to harassment. Complainant argued that she was denied training on the SHOES module which was used as the reason to subject her to harassment. Complainant requested that the Commission find that she was subjected to unlawful retaliatory harassment.
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").
Dismissal of Allegations (1) and (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of a complaint bars further claims by the same parties based on the same complaint or cause of action and issues relevant to that complaint, treating the judgment as the full measure of relief to be accorded between the same parties. See Magnallanes v. Dep't of Justice, EEOC Request No. 05900176 (July 13, 1990).
The Agency asserted that Complainant raised allegations (1) and (2) regarding the mid-year evaluation and the Supervisor's order to report her whereabouts when she appealed her removal action to the MSPB. The Agency provided a copy of the MSPB AJ's decision affirming the removal action. First, we note that Complainant did not raise claims of retaliation for her prior EEO activity before the MSPB. Moreover, we find that the MSPB AJ did not address the mid-year evaluation alleged in allegation (1) directly. Further, as to allegation (2), Complainant alleged that the Supervisor's order to report if she is away from her desk was part of her claim of harassment. In the MSPB AJ's decision, the charge sustained was Complainant's failure to comply with the order and did not address the nature of the order itself. As such, based on our review, we find that the Agency has not shown that allegations (1) and (2) were previously addressed by the MSPB. However, because the Agency fully investigated the events alleged in (1) and (2), we will address these allegations on their merits as part Complainant's overall claim of retaliatory harassment.
Harassment
It is well-settled that harassment based on an individual's prior EEO activity is actionable. In order to establish a claim of harassment under that basis, Complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
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. Complainant must also prove that the conduct was taken because of her prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Upon review, we find that Complainant failed to show that the events alleged occurred because of her prior EEO activity. The responsible Agency officials provided legitimate, nondiscriminatory reasons for the disputed actions. As for allegation (1), the Supervisor explained that in the mid-year evaluation, he provided Complainant with expectations and her deficiencies including her leaving her desk for extended periods and her failure to complete 75 SHOES entries per day. The Supervisor noted that Complainant requested further SHOES training, which was provided by a Special Agent. The Supervisor also said he asked Complainant to provide him with SHOES entries that cause her problems, but she did not provide such information. With regard to allegation (2), the Supervisor stated that Complainant was known to be away from her desk for hours and could not account for her time when she was asked. Based on the Complainant's behavior, the Supervisor required her to report to him if she was going to away from her desk for over 10 minutes. In response to allegation (3), the Supervisor indicated that Complainant was issued the suspension due to her failure to carry out his orders, directions, and assignments, including meeting the 75-report goal for SHOES entries and remaining at her desk. Finally, as to allegation (4), the record showed that Complainant was placed on AWOL/LWOP when she failed to provide proper medical documentation for an extended absence. Complainant, however, failed to prove, by a preponderance of the evidence, that these proffered reasons were really a pretext designed to mask the Supervisor's true retaliatory animus.
Based on our review, we find that Complainant has not shown that the events offered to support her harassment claim occurred because of her prior EEO activity. Accordingly, we conclude that Complainant has not established that she was subjected to retaliatory harassment.
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 no discrimination.
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
August 25, 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.
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