0120130004
08-27-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130004
Agency No. 4L-0J-11002-F12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 26, 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.
BACKGROUND
During the period at issue, Complainant worked as an Accounting and Budget Technician, GS-07, at the Agency's Financial Management Analysis unit, 97th Comptroller Squadron, 97th Air Mobility Squadron, Altus Air Force Base, Oklahoma.
On November 24, 2010, Complainant filed a formal EEO complaint claiming she was discriminated against her on the basis of sex (female) and in reprisal for prior protected activity when she was subjected to a hostile work environment, as reflected in the following matters:
1. In July 2010, her supervisor (male) touched her face and hair and said, "[h]ow are you doing";
2. In July 2010, her supervisor passed by her desk and called her a "punk";
3. In August 2010, she asked her supervisor to "stop using her name in vain" and he responded by saying that she was acting like she was on "crack";
4. On September 21, 2010, her supervisor refused to sign a Lost Wages Verification form that she needed due to a car accident;
5. On September 22, 2010, her supervisor passed her desk and said, "drinking Carol is causing problems";
6. On September 30, 2010, her supervisor argued with her and told her that, "she does not know what she was talking about" in front of new employees;
7. On October 13, 2010, her first- level supervisor told her second level supervisor that her third level supervisor told him that she (complainant) should be written up for insubordination because she called him a jerk; and
8. On November 10, 2010, her supervisor wrote her an e-mail asking her to "do her job correctly the first time."
At the conclusion of the investigation, Complainant requested a hearing before an Administrative Judge (AJ). However, Complainant thereafter withdrew the hearing request and asked the AJ to remand the formal complaint to the Agency for a final decision. The AJ complied with her request and remanded the file to the Agency. On October 26, 2012, the Agency issued the instant final decision, finding no discrimination had been proven.
The instant appeal followed.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. 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." Id. at 23.
To establish a claim of harassment. Complainant must show that: (1) she is a member of the 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. Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. There is no evidence that considerations of sex or retaliatory animus motivated SO's actions toward Complainant. Complainant listed eight alleged incidents to support her claim. However, the evidence gathered during the investigation does not support a finding that the incidents identified as 1, 3 and 5 - 7 occurred as alleged. Complainant's supervisor denied the alleged incidents and that none of the witnesses Complainant named supported her assertions on these matters.
Regarding claim 2, it is undisputed that Complainant's supervisor called Complainant a "punk" on this occasion. Complainant's supervisor admitted making that remark, but claimed that his casual use the word was not motivated by any discriminatory animus. Other witnesses stated that he frequently used that word casually during his conversations with all sorts of people and there is no evidence that Complainant ever indicated to him that she was offended by the term.
Regarding claim 4, the supervisor admits he was initially reluctant to sign the Lost Verification form as Complainant did not have documentation supporting her request. However, after Complainant explained that the Lost Wage Verification form was a means of accounting for advanced sick leave which Complainant was to use for physical therapy treatments following a car accident, the supervisor signed the form.
Regarding claim 8, the record shows that on November 10, 2010, the supervisor forwarding to Complainant an e-mail he received from a FFAS employee, on the subject "MAFR Out of Balance Prior Day Altus", indicating some error in her preparation of the MAFR. Complainant responded to him stating, "[l]eave me alone and stop badgering me .... You are not my supervisor. I've been doing MAFR long before you got here." Complainant's supervisor responded to that, "[f]irst, I am not badgering you, I am asking you to do your job and do it correctly the first time."
Based on the evidence of record, we find that Complainant failed to establish that she was subjected to hostile work environment because of her sex or as a result of retaliatory animus. There is no credible evidence other than her bare allegations to support her claims. We acknowledge that the supervisor made a number of isolated remarks which Complainant construed as offensive. However, we find that these incidents are either of insufficient severity or pervasiveness to interfere with her work performance or creating a hostile work environment. We further find no evidence that these incidents were in anyway motivated by Complainant's sex or her prior protected activity.
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 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
August 27, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
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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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