0120113014
11-07-2012
Daisy Morales, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Daisy Morales,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120113014
Hearing No. 570-2010-00646X
Agency No. DOSF08608
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 19, 2011 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked under a probationary appointment as a Passport Specialist at the Agency's Miami Passport facility in Miami, Florida.
On June 18, 2008, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the basis of age (47) when she was terminated from her employment. Complainant specifically alleged that she was subjected to an unfair probationary process, which encompassed inadequate training for her passport specialist position.
At the conclusion of the Agency's investigation into her claims, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). However, the AJ granted the Agency's motion for a decision without a hearing, concluding that a review of the investigative file showed no dispute as to the material facts.
Based on the investigation, the AJ found the following facts. Complainant received a probationary appointment as a Passport Specialist (GS-07, Step 6) with the Miami Passport Agency, Bureau of Consular Affairs, U.S. Department of State on September 30, 2007. Complainant's appointment was through the Department's Career Entry Program and subject to a maximum two-year term. At the time of her probationary appointment, Complainant received and signed two documents regarding the terms of her probationary appointment: (1) a Conditions of Employment Agreement stating, in relevant part, that failure to make satisfactory progress in training that results in unacceptable performance is cause for separation from employment; and (2) a Statement of Understanding for Conditions and Terms for Employment for Temporary Provisional Appointments stating, in relevant part, that failure to meet performance requirements could result in termination.
Immediately upon her appointment, following a regular period of administrative in-processing,
Complainant was given a copy of the relevant portions of the Foreign Affairs Manual (FAM) that govern the adjudication of passport applications and was given an entire week solely to study and familiarize herself with their contents.
At least seven of Complainant's supervisors and mentors were made available to her should she at any point during that week need assistance, clarification, or to ask questions regarding the substance of the FAM, but Complainant did not seek out their assistance. Following that week of assisted self-study, Complainant was placed in intensive, full-time training with around eleven other entry-level passport specialists. Complainant was trained full-time in a classroom setting for one full week.
Following that training, all twelve new passport specialists were placed together in a conference room for a week of further practical training, and each was provided with a batch of passport applications and asked to apply what they had learned in training to the adjudication of these applications. During the entire week of this practical training, all twelve entry-level passport specialists were observed by mentors who were present to assist with any questions that arose. Following this practical training, the twelve new passport specialists were sent to South Carolina for two full weeks of further job training at a national training program. Despite falling ill half-way through this training, Complainant attended all sessions in their entirety.
When this initial five weeks of training were complete, Complainant (along with her eleven colleagues) began adjudicating passport applications under careful supervision of mentors and supervisors. All work was audited 100% by a supervisor, and the new employees were receiving continuous and individualized on-the-job training from mentors assigned to them on a weekly basis. Shortly after this, and despite having reservations about missing on-going training at work, Complainant took about one month of annual leave. Upon Complainant's return from leave in January 2008, she was assigned to a team of passport specialists. Additionally, she was assigned one to two mentors each week. Complainant also received and signed a Performance Plan for her position that set forth the specific critical performance criteria required for the period beginning in January 2008.
Complainant was unable to perform at the level required under her appointment, both in terms of the speed of her work and the accuracy of her adjudication of passport applications. Having noticed Complainant's performance difficulties, Complainant's supervisor began documenting in detail Complainant's performance deficiencies and her counseling sessions with Complainant. On March 27, 2008, the Adjudication Manager met with Complainant to discuss her performance, and counseled her as to what she could do to improve. Having continued to demonstrate an inability to process passport applications at the necessary rate or with the level of accuracy required for her position, Complainant's supervisor presented Complainant on April 17, 2008, with her performance evaluation recommending against her retention in her probationary appointment. By letter dated May 2, 2008, Complainant was terminated for inadequate performance.
On March 21, 2011, the AJ issued a summary decision finding no discrimination. In reaching this decision, the AJ determined that even if Complainant could establish a prima facie case, the Agency had articulated legitimate, nondiscriminatory reasons for Complainant's termination. Specifically, management witnesses explained that almost immediately, problems with Complainant's performance emerged. While Complainant had asserted that new passport specialists at her level were unfairly expected to process roughly 123 applications per day, Complainant was processing half that amount. Her work, moreover, was plagued by mistakes. Management noted that despite continued formal training courses and numerous individualized training sessions with her supervisor and other supervisors and mentors to explain and help Complainant correct her mistakes, Complainant "continued to make repetitive and frequent errors when adjudicating passport applications and could not be released from having 100% of her work reviewed."
The AJ noted that Complainant was terminated in the sixth month of her probationary appointment not because of her age, but because of her deficient work performance. Despite extensive training, mentoring, and supervisory assistance, Complainant proved repeatedly unable to improve that performance. In conclusion, the AJ found that the events of which Complainant complains, either individually or collectively fail to rise to the level of unlawful harassment prohibited by the ADEA. Most importantly, there is no evidence that any of the actions or decisions of Agency management were motivated by unlawful reasons. Complainant failed to establish that any of management's reasons for its actions were pretextual or unworthy of belief. Complainant failed to establish discrimination under either the theory of disparate treatment or unlawful harassment.
On April 19, 2011, the Agency issued its final order adopting the AJ's decision. The instant appeal followed.
On appeal, Complainant asserts, inter alia, that the AJ improperly entered judgment in favor of the Agency. She further asserts that the AJ did not adequately address her claims of harassment.
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and Complainant has not identified any disputes of material fact that require resolution through a hearing.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that appellant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected class, management continuously subjected her to a hostile work environment. However, we find that Complainant has not shown that she was subjected to harassment in the form of unwelcome verbal or physical conduct involving her protected class, or the harassment complained of was based on her statutorily protected class. Further, Complainant has not shown that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. While Complainant has cited various incidents where Agency management took actions that were either adverse or disruptive to her, we find that Complainant fails to show that these incidents were as a result of unlawful discrimination. To the extent Complainant is alleging disparate treatment with respect to her termination, she has not shown that the Agency's reasons for terminating her were a pretext for discrimination.
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 order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence 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
November 7, 2012
__________________
Date
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0120113014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113014