0120152747
12-20-2017
Terisa B.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terisa B.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120152747
Hearing No. 570-2014-00095X
Agency No. HS-11-FEMA-00185
DECISION
On August 21, 2015, 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 July 29, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to disparate treatment and a hostile work environment on the bases of race (African-American), national origin (Ghanaian), sex (female), age (50), and reprisal for prior protected EEO activity in connection with the actions and conduct of her first and second level supervisors from March 2011 through September 2011.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist, serving as Chief, Logistics Branch in the Acquisitions Operations Division, at the Agency's Office of the Chief Procurement Officer, Headquarters facility in Washington, DC. On November 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (Ghanaian), sex (female), age (50), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when:
1. In March 2011, Complainant's second-level manager stated "[y]ou Africans need to learn to get along;"
2. Between May and June 2011, management did not support Complainant's efforts to obtain a legal opinion from the Office of Chief Counsel (OCC) on contracting issues;
3. On July 8, 2011, Complainant's first-level supervisor stated in a procurement meeting with the Associate Director of Mission Support that Complainant's father is from Ghana;
4. On August 4, 2011, management issued Complainant a negative Mid-Cycle Progress Review;
5. On August 29, 2011, management informed Complainant that she was reassigned from her position as Chief of the Logistics Branch, Acquisitions Operations Division, to the position of Chief, Audit and Compliance, Acquisition Policy Division, effective October 1, 2011;
6. Beginning on August 29, 2011, when Complainant initiated contact with an EEO Counselor, management closely monitored Complainant's time and attendance, and verbally reprimanded her for a single incident of tardiness;
7. On September 2, 2011, management denied Complainant's request for credit hours for overtime work; and,
8. On September 26, 2011, management removed the annual performance ratings of Complainant's subordinates from Complainant's locked desk during her absence and changed the ratings.
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. Specifically, the Agency found that Complainant did not show that Management's conduct was based on her race, national origin, sex, age or reprisal; Management articulated legitimate, nondiscriminatory reasons for its conduct and Complainant provided no objective evidence or convincing argument to show that management's reasons were unworthy of belief.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among several things, that she has presented direct evidence that Management created a hostile work environment and that their actions were based on discriminatory animus. Specifically, Management made inappropriate comments relative to her Ghanaian background and did not support her managerial efforts. Once she began to question the way Management was treating her, she went from receiving outstanding evaluations to receiving a negative Mid-Cycle evaluation. Moreover, once she initiated EEO counselor contact, she was reassigned, and in effect, demoted, and thereafter, Management began to monitor her time and attendance.
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
Disparate Treatment (Claims 4, 5 and 7)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. 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). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, we find that Complainant did not establish that the Agency subjected her to disparate treatment on the bases of race, national origin, sex, age or reprisal.
First, assuming arguendo that Complainant established a prima facie case on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Management averred that the Mid-cycle review was based on their lack of satisfaction with Complainant's communication tone and customer service. Her first-level manger, S1, testified to a specific incident of a customer having issues with the way he was handled by Complainant. Management also referenced Complainant's on-going disagreements concerning managerial direction.
Concerning her reassignment, the second-level manger, S2, indicated that, based on their need for better communication and customer service in the Chief of Logistics position, she was reassigned to the Chief, Audit and Compliance positon, as they believed that position was more amenable to her operational oriented skill set.
On the denial of credit hours claim, S1 testified that Complainant did not initially provide sufficient information to support her request. When she subsequently clarified her date and time information, her credit hour request was approved.
We find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, national origin, sex, age or reprisal discrimination.
In her brief in support of this appeal, Complainant argues that the Agency failed to articulate, with sufficient clarity and detail, the legitimate nondiscriminatory reasons for its actions. The record does not support Complainant's argument, and shows instead that management did in fact give specific explanations for its actions, including information of customer dissatisfaction with Complainant and, in at least one instance, a complaint that she was not respectful to them.
Regarding Claims 4, 5 and 7, we find, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (See also Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994)), that a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Hostile Work Environment Harassment (Claims 1, 2, 3, 6 and 8)
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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).
Regarding Claims 1, 2, 3, 6 and 8, we find that Complainant did not show that the Agency's alleged actions were based on her race, national origin, sex, age or reprisal. The record contains conflicting testimony concerning statements allegedly made by Management. For example, with respect to Claim number 1, S2 denies that he made the alleged statement and the interaction took place between Complainant and S2 only. Had Complainant maintained her complaint in the hearing process before an AJ, the AJ could have made credibility determinations based on the witness testimony. See generally EEO MD-110, at Ch. 7. As we do not have the benefit of an AJ's credibility determinations after a hearing, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that Management's alleged actions were discriminatory.
We find that the remainder of Complainant's hostile work environment claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Moreover, we find that the interactions between Complainant and Management were for the most part work-related interactions and we find no evidence that they were based on her protected bases. While Complainant and her supervisors had different ideas about managerial direction and other topics, we find that Complainant did not demonstrate that discriminatory animus was involved.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish that the Agency subjected her to disparate treatment or a hostile work environment on the bases of race, national origin, sex, age or reprisal. Therefore, we AFFIRM the Agency's final decision finding that Complainant did not establish discrimination as alleged.
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
__12/20/17________________
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
0120152747
2
00120152747