Virginia V., Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jul 27, 2017

0120151314 (E.E.O.C. Jul. 27, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Virginia V.,
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120151314

Hearing No. 410-2014-00015X

Agency No. 2013-24804-FAA-03

DECISION

The Commission accepts Complainant’s appeal from the Agency’s February 6, 2015, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst at the Agency’s Southern Regional Office in College Park, Georgia.
Complainant experiences complications from several conditions including a bulging disc in her
neck, a bulging disc in her lower back, sciatica on her left side, Fibromyalgia and Neuropathy,
and anxiety. Complainant began to frequently be out of the office due to on-job-injuries she
suffered in June 2011 and December 2011, and other health issues.

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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Beginning in November 2011, Complainant claims that she was subjected to verbal harassment
from her supervisor (S1). For example, Complainant claims that she passed S1 in the hallway on
one occasion in November 2011, and stated to S1 that she had a great week and accomplished a
lot. Complainant alleges that S1 responded that it was because she was at work. Complainant
claims that she did not respond because she believed that S1 was teasing her.

In October or November 2011, Complainant alleges that she submitted an annual leave request
for December 2, 2011. On November 18, 2011, S1 denied the request. S1 informed
Complainant that she could re-submit her leave request once her projects were up to date.
Complainant was subsequently granted the leave. On another instance, in December 2011, S1
called Complainant at home asking where she was after she failed to report to work.
Complainant replied that she had called the Team Lead and informed him that she was sick and
would not be reporting to work. S1 informed Complainant that she needed to contact her (S1) to
request leave in the future as the Team Lead was not authorized to approve leave.

Complainant worked a gliding schedule which allowed her to report to work between 7:00 a.m.
and 8:00 a.m. On one occasion, in December 2011, S1 called Complainant at 9:05 a.m. after she
failed to report to work. Complainant was driving to work at the time, but believed that S1 was
harassing her because she had until 10:30 a.m. to notify management if she would not be
reporting to work.

On January 5, 2012, Complainant informed S1 that she had a physical therapy appointment that
afternoon. Complainant claims that S1 responded that she did not know if Complainant was in
or out of the office and that she had been performing Complainant’s job since she had been out
of the office. Complainant responded that S1 had been out of the office as well and that if S1
needed to talk to her, she could send an email. S1 agreed that they needed to schedule time to
meet. Complainant informed S1 that she felt resistance from her, that she did not appreciate it,
and that if she needed to go to the doctor to take care of her body that she would do so. S1
responded “okay [Complainant.]” Complainant alleges that she then inquired with the Flight
Standards Division Manager and Assistant Division Manager who both said that she was doing a
good job and that they had received no complaints about her availability.

In May 2012, Complainant was recuperating from surgery when S1 called to inquire as to when
she would be returning to work. Complainant had been approved for the leave and had
submitted medical documentation which stated that she would be out three to six weeks. After
three weeks, S1 called Complainant to receive an update to allow her to continue planning for
office coverage. Complainant became upset that S1 was asking about her leave and told S1 that
she was harassing her.

Complainant underwent a medical procedure on September 26, 2012, and was out of work on
September 27 and 28, 2012. Complainant had requested advanced sick leave, but failed to
submit the appropriate documentation in support. As a result, S1 charged Complainant with
absence without leave (AWOL) for those two days. Complainant later submitted the appropriate
documentation, and her time and attendance was amended.
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On November 19, 2012, S1 issued Complainant a Letter of Admonishment for her involvement
in an incident that occurred in June 2012. A co-worker (CW1), who was Complainant’s backup
during her absence, claimed that Complainant raised her voice at her and shoved her during a
dispute over reports. CW1 reported the incident to S1 and an investigation was conducted.
During the investigation, Complainant admitted to telling CW1 “you got paid a job you didn’t
do” and “get out of my office,” but denied shoving CW1. Management determined that
Complainant displayed poor judgment and injured her professional reputation. As a result, S1
issued Complainant a Letter of Admonishment.

On January 28, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
disability and in reprisal for prior protected EEO activity2 when, since approximately November
2011 and continuing, she was verbally harassed by her supervisor because she was out of the
office frequently as a result of two on-the-job injuries and other documented health issues.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on November 18, 2014, and issued a bench decision
on January 28, 2015.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. In
particular, the AJ noted that the Agency granted Complainant all the leave she requested and
allowed her to work from home almost full time. The AJ noted that, at best, Complainant
alleged that the Agency grudgingly granted leave on a couple of occasions, but she failed to
prove by a preponderance of the evidence that this was discriminatory. The record showed that
S1 initially denied Complainant’s request for leave on September 28 and 29, 2012; however,
there was a dispute as to whether Complainant had followed the necessary procedures and the
matter was subsequently resolved in Complainant’s favor. The AJ found that there was no basis
to infer that the rest of the conduct at issue was anything more than S1’s need to accomplish the
Agency’s mission and her slight frustration that Complainant, who was a highly valuable
employee, was out of work quite a bit.

Finally, with respect to the Letter of Admonishment, the AJ determined that while Complainant
denied pushing CW1, she did admit to issuing a negative informal performance review. The AJ
noted that Complainant was not CW1’s supervisor; therefore, the Agency had a factual basis for
finding the comments inappropriate.

2 Complainant added reprisal as a basis of discrimination in her affidavit during the investigation.
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The AJ concluded that Complainant failed to show that the Agency’s reasons were pretextual.
As a result, the AJ found that Complainant had not been subjected to discrimination, reprisal, or
a hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates arguments previously made. Additionally, Complainant
argues that the AJ was unprepared for the hearing and made several errors. Complainant
contends that she did not have the opportunity to fully present her case based on the AJ’s denial
of her request to recall S1 to prove she was untruthful during her testimony. Complainant claims
that the AJ would not have rendered a decision in favor of the Agency had he thoroughly
reviewed the ROI, the hearing transcript, and her rebuttal. Accordingly, Complainant requests
that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. See 29 C.F.R. § 1614.405(a).

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Ch. 9, at § VI.B. (Aug. 5, 2015).

The Commission shall first address Complainant’s contentions on appeal regarding the manner
in which the AJ conducted the hearing. The Commission notes that AJs have broad discretion in
the conduct of hearings, including discovery and the determination of whether to admit evidence,
or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e); Equal
Employment Opportunity Commission Management Directive 110 for 29 C.F.R. Part 1614 (EEO
MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed the record and finds no abuse
of discretion by the AJ. Further, the Commission is unable to find any evidence of bias, or other
reversible error, resulting from the manner in which the AJ managed and adjudicated this case.
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ANALYSIS AND FINDINGS

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
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).

Therefore, 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 protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on her protected classes, management subjected her to a hostile
work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment. The Commission finds that substantial record
evidence supports the AJ’s determination that Complainant has not shown that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment. In so finding,
the Commission notes that the anti-discrimination statutes are not a civility code. Rather, they
forbid “only behavior so objectively offensive as to alter the conditions of the victim's
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. For example, S1 testified that she called Complainant at 9:05 a.m. in December
2011, because Complainant had not yet reported to duty and usually reported around 7:30 a.m.
Hr’g Tr., at 75. S1 testified that her intention was only to ascertain Complainant’s status. Id.
Similarly, in May 2012, S1 testified that she called Complainant following her surgery for an
update as to when Complainant anticipated she would return to work because she needed to plan
for how long someone would need to continue performing Complainant’s duties. Id. at 78.
With respect to the AWOL charge, S1 testified that Complainant initially failed to properly
document what leave she wanted to request. Id. at 73-74. S1 testified that Complainant later
properly requested the type of leave she wanted, and S1 approved the amended time and
attendance. Id. at 75. Finally, S1 testified that she issued the Letter of Admonishment following
CW1’s complaint that Complainant was abusive to her and spoke to her inappropriately. Id. at
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80. S1 testified that she acted on the recommendation of Labor Relations following an
investigation into the incident. Id.

After reviewing the record and considering the arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and his factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
has not shown that she was subjected to a discriminatory or retaliatory hostile work environment.
Furthermore, the record fails to disclose any evidence purporting to show any of the alleged
incidents were based on discriminatory or retaliatory animus. Accordingly, the Commission
finds that Complainant has not established that she was subjected to discrimination, reprisal, or a
hostile work environment as to all claims alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported by
the record.

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.
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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 27, 2017
Date