0120122003
09-11-2012
Suruchi K. Gokhale, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Suruchi K. Gokhale,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120122003
Agency No. 2010-0070-HQ
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 8, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Analyst, GS-09, at the Agency's Office of Environmental Information (OEI), Office of Planning, Resources and Outreach (OPRO), Resource Management Staff (RMS) in Washington, D.C.
On July 30, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (Asian), national origin (East Indian), disability (diabetes, fibromyalgia, and other unspecified conditions), and in reprisal for prior EEO activity when:
1. two weeks after a Program Analyst (PA)'s arrival in 2009 to OEI/OPRO/RMS, she:
-spoke to Complainant in a condescending way;
-gossiped about her to other members of the team and uttered racist comments;
-belittled her in front of her peers;
-treated her disrespectfully and unprofessionally;
-stated that she was lazy and a malingerer; and
-treated her differently for missing work because of her illness; and
2. on April 6, 2010, PA:
-treated Complainant in a hostile and violent manner at her cubicle;
-stood over her and shook a file folder millimeters from her face;
-spoke to her in a belittling, condescending and shouting voice; and
-threatened her by continuing to belittle and berate her; and
3. in early June 2010, the Director of RMS failed to respond to her request for reassignment and ridiculed her and chuckled when she expressed that she felt fearful, threatened, and afraid of PA.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 8, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its March 8, 2012, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race, national origin, disability and reprisal discrimination.1 The Agency further found that assuming arguendo Complainant established a prima facie case of race, national origin, disability and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, national origin, disability, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The Director of RMS (D1) stated that from December 2009 through July 20, 2010, he supervised Complainant. D1 stated that on April 6, 2010, he met with Complainant and PA concerning the status of a Purchase Request (PR) submitted by the Staff Director (SD). D1 stated that he observed Complainant and PA "discussing the PR and elevating their voices. I do not recall observing [PA] humiliate or embarrass the Complainant in the presence of the Complainant's co-workers. I informed the Complainant, my concerns over the communications between [PA] and her, and I wanted a status on the PR, since [SD] came to my office asking for assistance. However, I mentioned to [Complainant] that she needed to be conscientious when communicating with others in the work place, because she was raising her voice to me."
D1 stated that Complainant was trained in the PR area and "does not report to work on a regular basis to implement and apply [what] she learned in her day-to-day operations. The Complainant was not able to recall the training previously provided and apply the procedure to process the PR request totaling about $1,900; I do not know what [PA] elevated her voice when discussing the PR with the Complainant."
D1 stated that on April 15, 2010, Complainant sent him an email stating that she felt fearful, threatened, and afraid of PA. Specifically, D1 stated upon receipt of the email, he attempted to follow-up with the Complainant in person but she was not available. D1 stated that he then contacted the Office of General Counsel (OGC) and the Office of Human Services (OHR) "to discuss the matter and identify a course of action. As a result I met with [named employee] in the OHR Violence in the Workplace Program Office to request an independent investigation on the allegations." D1 stated that in June 2010, he contacted the OGC for guidance because the investigation was still pending and "the OGC advised that we could provide relief by relocating the Complainant to a different work space. On June 25, 2010, this move occurred."
Further, D1 denied not responding to Complainant's request for reassignment, and ridiculing and chuckling when Complainant expressed that she felt fearful, threatened and afraid of PA. Specifically, D1 stated that he left work at early morning on June 3, 2010 "due a personal illness. I recall receiving an email on June 3, 2010, from the Complainant concerning the correction of the Complainant's time and attendance records. I did not engage in a personal one-on-one dialogue with the Complainant on June 3, 2010."
PA stated that on April 6, 2010, pursuant to D1's instructions, she approached Complainant to assist her with a funding issue. PA stated that Complainant told her that she had written notes in the file about everything she had done but she did not find any notes. Specifically, PA stated "I assumed the client had removed the notes from the file. I instructed the Complainant to contact the client and suggest that we use 2010/2011 (1011) finds, because we had those funds." PA stated that later that day, Complainant "called to me as I passed her cubicle to let me know that the client had responded to her information on the 1011 funds. I read the email message from [Complainant's] to the client and the client's response. I found the Complainant's message confusing and difficult to follow, and indicated that to her. The Complainant appeared to become increasingly agitated as she explained her reasoning...when speaking with the Complainant in her cubicle, my voice and the Complainant's voice became elevated. When I realized that our voices were getting elevated, I lowered my voice. I told the Complainant that the situation was a lot simpler than she was making it out to be. At that point I left her cubicle. I acknowledge the elevation of my voice, but it was out of frustration."
Further, PA stated that when she approached Complainant's cubicle, she acknowledged having one file folder in her hand "but I deny placing the file folder close enough to make body contact. I did not stand or lean close to the Complainant."
In her response to Complainant's allegations dated March 31, 2010, the Deputy Director (DD) stated that management took Complainant's allegations "seriously and devoted significant time and energy to accessing the situation, with the sincere goal of trying to rectify the situation."
With respect to Complainant's allegation that employees gossiped about her to other members of the team and uttered racist comments, DD stated that her findings showed that comments from RMS staff members "ranged from not knowing about gossip because they're in a private office or too busy working, to acknowledging typical workplace gossip, to asking about people's time and attendance for coordinating work, to hearing definite gossip about themselves and others." DD stated that one RMS staff member was singled out by a couple of employees for making inappropriate comments to her or him. DD further stated that several RMS staff members mentioned that Complainant tried to share gossip with them, "trying to 'fish' for information, and going from cube-to-cube for social chit-chat. One person said she doesn't want to hear it when you try to tell her what others are saying about her. Another person mentioned you saying disparaging things about another member of the staff."
With respect to Complainant's allegation that she was treated disrespectfully by PA and SD at the holiday party, DD stated that there was a "fundamental misunderstanding" about the holiday party. DD noted that Complainant acted in good faith by asking a senior staff member if the OCFO open house was something that she should do. DD stated that the senior staff member thought it was an open house and told Complainant that he did not see why Complainant cannot go to the open house. DD stated at that time, PA and SD though it was the Office of Budget holiday party which was by invitation only and "were not expecting to see [Complainant] there since [she was] not invited, and that it was invitation only." DD stated that she contacted the Office of Budget Director and "he confirmed it was the [Office of Budget] Holiday and not the CFO's Open House, and that it was invitation only. He forwarded a copy of the invitation." DD stated although an Office of Budget staff member noticed Complainant's presence but "no one from [Office of Budget] expressed concern that [she] attended. They were too busy enjoying themselves. The [Office of Budget] Director said it was not a problem."
DD stated that PA and SD stated that they were not rude to Complainant but acknowledged that they "were not warm and friendly either. They were surprised to see [Complainant] there, and did not know you had asked [the senior staff member] if it was okay to come." DD further stated "no other RMS [staff members] said they witnessed [PA] or [SD] treating you or anyone else rudely or disrespectfully. One RMS [staff member] made reference to [PA]'s brusque manner in general." DD stated that according to PA, she stated that her personal style "is not effusive. She does make it clear when she is not satisfied with something. She does not believe that is being rude; rather, she believes she is being direct and straightforward."
With respect to Complainant's allegation that she had not received adequate training to perform her assignments, DD stated that a review of the record reflects that Complainant received 34 training sessions (classroom and on-the-job) between June 2009 and December 2009. DD determined that Complainant had received "extensive training which is more than adequate to provide the skills and specific knowledge necessary to perform [her] assignments."
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, national origin, disability and retaliation.
Complainant, on appeal, has provided no persuasive arguments indicating any error in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2012
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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