0120142677
12-28-2016
Twanna C.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Twanna C.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120142677
Hearing No. 550-2014-00010X; 550-2013-00011X
Agency No. FS-2011-00988 and FS-2011-01083
DECISION
On July 22, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 12, 2014, final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician (Engine Captain), GS-8, at the Agency's Western Divide Rand District, Sequoia National Forest facility in Springville, California.
On December 5, 2011, Complainant filed two EEO complaints. The first EEO complaint alleged that the Agency discriminated against her on the basis of race (Native American) when she was subjected to harassment. In support of her complaint, Complainant alleged that the following events occurred:
1. On August 23, 2011, after she requested to be temporarily relieved of some of her job duties to accommodate her pregnancy, the Supervisor removed her from her supervisory role and informed her that she was the subject of a misconduct investigation.
2. On August 23, 2011, the Supervisor moved her to a small, windowless office that was invested with mice, mice feces, scorpions, and generally known to be unsafe.
3. Beginning on August 23, 2011, and continuing until November 2011, the Supervisor assigned her to menial filing duties, which required her to file documents in cabinets that were often too heavy for her to open and to choose between repeatedly walking up and down stairs to retrieve files, which was difficult because of her advanced pregnancy, or using an unsafe elevator that was "heavily leaking hydraulic fluid," including, on one occasion, all over her hands.
4. On or about September 4, 2011, the Supervisor rudely denied her requests to take an available data-entry assignment and to move to a vacant, more habitable office.
5. On September 6, 2011, the Supervisor attempted to snatch a document out of her hands, "got physically in [Complainant's] face and intimidated (her)," and repeatedly demanded to know whether she was refusing to follow orders.
In her second complaint, Complainant alleged discrimination and harassment on the bases of race and reprisal (for her prior EEO activity), when:
6. On September 28, 2011, management denied her request to telework.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the report of investigations and notices of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on both complaints. On March 2, 2013, the Agency filed a motion for a decision without a hearing. Complainant moved for the AJ to deny the request. Following the motions, the AJ issued a decision without a hearing on April 11, 2014.
The AJ noted that the Agency stated in its motion for summary judgment some nine pages of facts to which Complainant did not object. Complainant stated her list of 22 facts without providing supporting evidence. The Agency did not challenge six of these but did object to 16 others. The AJ reviewed the record and found that only found three of Complainant's 22 facts were not supported and he determined that those alleged facts could not be considered. The AJ found that the record was fully developed and the complaint was ripe for summary judgment.
The AJ found that Complainant was employed by the Agency as a Forestry Technician, GS-8, at the Agency's facility. Complainant's management consisted of a first line supervisor (Supervisor), an Acting Suppression Battalion Chief (Acting Chief), and a second-line supervisor who was also the Division Chief (Division Chief). Complainant was an Engine Captain and directly supervised 5-7 individuals. Complainant informed the Supervisor that she was pregnant and requested an accommodation. Specifically, she asked not to respond to incidents involving smoke and other hazards. The Supervisor consulted with the District Ranger. They decided to keep Complainant in her position until August 2011. However, the Supervisor was not aware that Complainant had to perform any arduous firefighting duties. In April/May 2011, a new subordinate (Subordinate) joined Complainant's engine crew and it was hoped that she could temporarily supervise the crew when Complainant could not due to the pregnancy and after childbirth. In June 2011, Complainant provided a list of her physical limitations and suggesting light duty signed by her doctor. The Subordinate contacted the Supervisor complaining about Complainant being difficult and over-bearing. The Supervisor told the Subordinate that she needed to be patient and to get used to Complainant's management style. The Subordinate met with management to allege her claims of hostility on the part of Complainant on her crew. She indicated that Complainant called members of her crew and management "retards," "stupid," "assholes," "idiots," "fat," "lazy," and "crackheads." She also complained about Complainant making her wear ill-fitted fire equipment even though better-suited gear was available. The Subordinate noted that Complainant has monitored their emails and she no longer wanted to be on her crew. Management met on June 29, 2011, to discuss the complaints and they initiated meetings with Complainant's crew to see what was happening. On June 30, 2011, they met with Complainant and the crew. Complainant acknowledged that she was aware of concerns by her crew and that they believed she yelled at them too much. She stated that she told the crew to "stop acting stupid" and belittled them. Management heard from her crew members that she had belittled them. As a result, Management advised Complainant that she should change her approach and that they would monitor the situation.
After 45 days, the Subordinate informed Management that the harassment was ongoing and that she intended to file a grievance. On August 17, 2011, it was suggested to the Forest Ranger that Complainant be temporary removed from supervisory duties. The Forest Ranger and the Supervisor met with Complainant on August 21, 2011, and informed her that the Subordinate would be reporting directly to the Supervisor, not Complainant. They noted that the change was due to the on-going problems between Complainant and her crew. They also indicated that because Complainant had requested light duty due to her pregnancy, they provided her with a clerical assignment for the Assistant Forest Training Officer. Complainant reported to the position on August 23, 2011, and found her work space unsatisfactory indicating that it had no windows, little lighting, no desk, mice and mice droppings. The District Ranger met with Complainant the next day along with her union representative (Representative). Complainant asked if she could be assigned to work for the representative. The following week, the District Ranger met with Complainant because she complained about her working conditions, and who instructed management to provide Complainant with a computer, telephone, and trash can. A few days later, Complainant indicated that she was not comfortable using the elevator because it was leaking fluid. An elevator repairman confirmed that there was a small leak but that it was safe. The AJ noted that the work space was on the first floor and Complainant only used the elevator to retrieve files from the second floor and she could have files brought to her. As such, she would have no reason to go to the second floor. On September 6, 2011, the District Ranger met with Complainant to draft an outline of her light duty accommodation. When the District Ranger wanted to make a copy, she refused. When he became angry, Complainant indicated that she felt intimidated. The day after the meeting, Complainant contacted the EEO Counselor. On September 15, 2011, Complainant was moved to work for the Forest Supervisor's executive assistant in the reception area by his office.
On September 27, 2011, the Forest Supervisor received an email from the Representative seeking a "work at home" agreement for Complainant due to her pregnancy. The Forest Supervisor advised Complainant and the Representative of his concerns and told her to meet with her supervisor in order to prepare a telework agreement. On September 30, 2011, Complainant contacted the Agency's EEO Counselor alleging discrimination when she was denied a work-at-home agreement. On October 13, 2011, the Forest Supervisor directed Complainant to create a telework agreement and to get back to him by the end of the day to resolve the matter. Later that day, Complainant and the Division Chief executed the telework agreement.
Based on these facts, the AJ issued his analysis of Complainant's claim of discrimination and harassment. The AJ found that Complainant failed to establish a prima facie case of race discrimination as to claims (1) - (5). The AJ then determined that Complainant provided even less evidence of any discrimination with respect to claim (6) based on her race and/or prior EEO activity. The AJ noted that the Forest Supervisor did not deny her request and provided her with the proper process for obtaining a telework agreement which she followed. Based on the totality of the record, the AJ noted that Complainant failed to provide evidence to support her claims of discrimination or that the Agency's actions were pretext for discrimination. Accordingly, the AJ concluded that the Complainant failed to show that she was subjected to unlawful discrimination and/or harassment based on race and/or EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed. The Agency responded to the appeal arguing that the matter should be held in abeyance as Complainant has alleged a class complaint including the instant appeal. However, the Agency failed to provide any evidence to support its assertion on appeal. Finding no reason to hold the matter in abeyance, the Commission shall address Complainant's appeal of the Agency's final order implementing the AJ's decision without a hearing.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
In order 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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, 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. 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record supports the AJ's findings that Complainant failed to establish a prima facie case of discrimination based on race with regard to claims (1) - (5) and on race and in retaliation with respect to claim (6). Upon review of the record, we find that the Agency provided legitimate, non-discriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for unlawful discrimination and/or retaliation. Accordingly, we find that the Agency properly adopted the AJ's findings and conclusions regarding Complainant's claims of disparate treatment.
Harassment
It is well-settled that harassment based on an individual's race and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected class and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in that class and her prior EEO activity; (3) the harassment complained of was based on race and/or prior EEO activity; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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 a protected basis - in this case, because of her race and/or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Upon review of the record, we find that the AJ properly held that Complainant failed to prove that the alleged harassment occurred because of her race and/or EEO activity.
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 order adopting the AJ's 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
December 28, 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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