0120092754
11-17-2009
Zabdi A. Nieves, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Zabdi A. Nieves,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120092754
Agency No. 2007-21020-FAA-03
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 30, 2009 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Air Traffic
Specialist, FG 2152-AT-GH, assigned to the San Juan Air Traffic Control
Tower (San Juan ATCT) in San Juan, Puerto Rico.
On March 16, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to harassment and
a hostile work environment on the bases of sex (female), age (over 40)
and in reprisal for prior protected activity when:
1. on November 2, 2006, she was denied reassignment to another
supervisor;
2. she was issued a Letter of Reprimand dated November 14, 2006;
3. on January 10, 2007, her supervisor refused to acknowledge or address
her;
4. on May 22, 2007, she was given an "Exhaustion of Sick Leave"
memorandum;
5. on August 29, 2007, she was given an "Unacceptable Medical
Certification" memorandum;
6. on September 26, 2007, management conducted a performance discussion
with her; and
7. on October 15, 2007, management conducted a second disciplinary action
warning regarding defamatory and irresponsible statements towards several
coworkers.1
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. However, complainant subsequently withdrew her
request. Consequently, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
In its April 30, 2009 final decision, the agency found that complainant
did not establish a prima facie case of sex, age and reprisal
discrimination. The agency further found that assuming complainant
established a prima facie case of sex, age and reprisal discrimination,
management articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show were a pretext.
The agency also determined that complainant had raised a claim of
both sexual and non-sexual harassment. Regarding the non-sexual
harassment claim, the agency found that the evidence in the record did
not establish that complainant was subjected to harassment based on sex,
age and retaliation. Specifically, the agency found that the alleged
harassment was insufficiently severe or pervasive so as to create a
hostile work environment.
With regard to complainant's claim of sexual harassment, the agency found
that the evidence in the record did not establish that complainant was
subjected to sexual harassment. Specifically, the agency noted that
complainant alleged that her front line manager (M1) subjected her to
sexual harassment in June 2006. Despite complainant's assertions to
the contrary, there were no witnesses to M1 making sexual innuendos to
complainant or anyone else in the work place. Moreover, complainant
conceded that she did not report the alleged June 2006 incident to
upper-level management. Based on this evidence, the agency concluded
complainant did not establish, by a preponderance of the evidence,
that sexual harassment occurred.
Regarding claim 1, the record contains a copy of complainant's memorandum
dated November 2, 2006, to S2 requesting change of rating supervisor.
The record further reflects that S2 denied complainant's request stating
"your request is denied due to lack of justification." In her report,
the EEO Counselor stated that S2 denied complainant's request because
"he only has two supervisors and it would not make a difference to change
the supervisor. He was informed that [complainant] wanted a change in
the Performance Rating Supervisor. He informed me that this would not
solve the issues."
Regarding claim 2, M1 stated that he issued complainant a letter of
reprimand because "she caused damage to government property." M1 stated
in regard to complainant's allegation that she did not maliciously hit
or intend to damage a government telephone and that she merely tapped
the telephone because it was jammed, he disagreed with her "because I
had to call Airways Facility to fix the phone. They said the phone was
hit so hard that it shifted the board inside the phone." Moreover,
M1 stated that complainant's sex, age and prior protected activity were
not factors in his determination to issue her a letter of reprimand.
With respect to complainant's allegation that because M1 made sexual
innuendos to her and since she rejected his sexual advances, he has
engaged in a pattern of harassment against her, M1 stated "that is not
true." M1 further stated "at no time during my professional interaction
with [complainant] I have use prohibited criteria regarding her terms and
conditions of her employment; Furthermore, I never sexually harass[ed]
[complainant] or any of my subordinate employees."
S2, also M1's supervisor, stated during the relevant period, he was not
aware of any allegations made against M1 by complainant.
Regarding claim 3, the agency noted that complainant presented nothing
in her affidavit to support her assertion that M1 refused to acknowledge
or address her. The agency further found that complainant did not show
that she was singled out due to her protected bases.
Regarding claim 4, M1 stated that he was instructed by S2 to issue the
Exhaustion of Sick Leave memorandum to complainant. With respect to
complainant's allegation she should not have been issued the memorandum
because she had justification for using sick leave to attend her husband
and son when they were ill, as well as tending to her own illness, M1
denied complainant's assertion. Specifically, M1 stated complainant
was issued the memorandum "because of sick leave exhaustion, she was
the only employee in a negative status."
S2 stated that he instructed M1 to issue the subject memorandum because
of complainant's negative sick leave balance. Specifically, S1 stated
"as the steward of public trust, I have responsibility for budget and
leave usage. I became concerned about [complainant's] leave usage
because she had a negative sick leave balance." S2 further stated that
he attempted to make sure that complainant "was aware of her leave
situation to avoid more serious problems. If she would continue to have
a negative sick leave without a justification, it could have resulted in
disciplinary action." S2 stated that as of May 22, 2007, complainant
"had a minus sick leave balance of -36 hours. As of the beginning of
the leave year 2007, in January 2007 or pay period 3, she had a negative
balance of -72 hours."
Regarding claim 5, S2 stated that on August 29, 2007, he instructed M1
to issue complainant an Unacceptable Medical Certification memorandum
because she "had submitted a sketchy medical note in one of her absences
from work. The note did not provide a diagnosis and/or prognosis; [it]
just simply stated that she had been seen by her doctor." S2 further
stated that complainant was not harmed "because she was alerted by the
memorandum to provide adequate medical documentation in future absence
from work to avoid disciplinary action."
With respect to complainant's allegation that she was issued the
subject memorandum because of harassment, S2 stated "no, I believe I
have already explained the reason in question which had nothing to do
with harassment."
Regarding claim 6, M1 stated that on September 26, 2007, he conducted
a performance discussion with complainant and union representative
concerning the service she provided to an aircraft because "if a
performance could lead in to a disciplinary action as per the contract
the employee needs a union rep." M1 further stated "in several occasions
I have coached and given [complainant] on-the-spot corrections for the
same performance deficiency. I have also discussed with her the issue
of providing additional services to the users as per our Performance
Management System."
With respect to complainant's allegation that she was harassed by M1
in the presence of a union representative how she served an aircraft,
M1 denied it. M1 stated that complainant "was not harassed it is the
Front Line Manager duty if a performance could lead to a disciplinary
action the union should be there."
Regarding claim 7, M1 stated that on October 15, 2007, he conducted a
second disciplinary action warning about making irresponsible remarks
about other employees. Specifically, M1 stated that an employee "came
up to me very upset because [complainant] had made some comments [in]
reference [to] her OJTI class. Another employee came to me because
[complainant] was disrupting the orderly conduct of official business."
M1 stated that he disagreed with complainant's statement that she
did not need a union representative present during the conversation.
Specifically, M1 stated "I needed a Union Rep because this is a
disciplinary action as per the Cod of Conduct, Section 12. Defamatory or
Irresponsible Statements."
Disparate Treatment
A claim of disparate treatment is examined under the three-party 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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Harassment
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. 01970727 (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, with regard to complainant's claim of non-sexual
harassment, we find that the incidents complained of, even if true
and considered together, do not rise to the level of a hostile work
environment. Moreover, there is simply no evidence to link these alleged
events to complainant's protected classes. With regard to complainant's
claim of sexual harassment, we agree with the agency that complainant
has not established, by a preponderance of the evidence, that she was
subjected to inappropriate sexual innuendos and advances from M1.
CONCLUSION
In summary, the Commission determines that on appeal, complainant
has not identified any persuasive arguments relating to the agency's
articulated non-discriminatory reason for its actions, or to the agency's
determination that complainant has not established pretext. Accordingly,
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 (M1208)
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), 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 (S0408)
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 (Z1008)
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
November 17, 2009
__________________
Date
1 The record reflects that claims 4 - 7 and reprisal as a basis were
later amended to the instant complaint.
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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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