0120122260
10-12-2012
Debra A. Heimberger, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.
Debra A. Heimberger,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120122260
Hearing No. 510-2011-00378X
Agency No. 10-63-03003D
DECISION
Complainant filed an appeal from an Agency's final order dated April 6, 2012, with regard to her complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In her formal complaint, dated September 8, 2010, Complainant, a former Crew Leader Assistant (CLA) at the Agency's Columbus Suburban Local Census Office, Columbus, Ohio, alleged discrimination based on sex (female) when she was subjected to sexual harassment and when she was terminated from her employment at the Agency. In her complaint, Complainant also alleged the basis of reprisal. However, on November 22, 2010, the Agency dismissed the claim of reprisal after finding that Complainant had not engaged in any prior EEO activity. At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 19, 2012, the AJ, after a hearing, issued a decision affirming the Agency's dismissal of discrimination on the basis of reprisal and finding no discrimination on the basis of sex, which was implemented by the Agency in its final order.
ANALYSIS AND FINDINGS
Initially, we find that the Agency properly dismissed the claim of reprisal. There is no persuasive evidence that Complainant had engaged in any prior protected EEO activity; thus the claim of reprisal is properly dismissed for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).
Turning to Complainant's allegation of discrimination on the basis of her sex, 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. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not 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.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999). We find no error in the hearing process by the AJ.
To establish a claim of harassment, a complainant must show that: (1) she is a member of 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 the 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).
With respect to element (5), described above, 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. See Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, where the harassment does not result in a tangible employment action the employer can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Burlington Indust., supra; Faragher, supra; EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Liability Guidance).
The AJ noted that Complainant claimed that she was subjected to sexual harassment by a former Crew Leader (CL), male, beginning July 2, 2010, when:
* CL created opportunities to be alone with her in an attempt to learn more about her personal life;
* CL requested that she ride along with him making comments like "you are well put together" and "you are easy on the eyes;"
* In hot weather, CL suggested she dress more comfortably in shorts;
* CL suggested he pick her up at her grandmother's home in Fostoria, Ohio, travel to Detroit, Michigan, to see a mail boat and back to Fostoria;
* CL proposed doing carpentry work for a weekend free of charge;
* CL asked for her email address and sent her his favorite poem;
* After she indicated she would not meet with CL alone anymore, he suggested she have pizza with him and his daughter;
* When she made it clear she was not interested in a personal relationship, CL took away work from her; and,
* On July 14, 2010, her employment was terminated.
The AJ stated that Complainant testified that she met CL on July 2, 2010, when her supervisor asked her to take a letter to CL. Within two hours of their meeting, CL purportedly asked Complainant to be his CLA and asked her to ride with him to the local census office. During the car ride, CL allegedly made remarks of a sexual nature, i.e., "easy on the eyes" and "well put together." The AJ noted that these comments were clearly inappropriate and had no place in a work setting. The AJ indicated that Complainant testified that she did not understand why CL wanted her to be his CLA given that she had no prior experience. However, stated the AJ, Complainant had already been appointed as a CLA effective June 21, 2010, and she was already introduced as such to the group during a meeting on June 30, 2010. On appeal, Complainant does not dispute this.
Regarding CL's remarks about Complainant's grandmother's home, the AJ stated that this was in response to Complainant's comment that she was at her grandmother's house. The AJ indicated that during the hearing, Complainant was inconsistent, contradictory, not wholly credible, and had a tendency to exaggerate facts so as to create and bolster a claim of sexual harassment. Furthermore, the AJ stated that there was no evidence that Complainant did anything to prevent CL's purported overtures and found that Complainant might have encouraged or welcomed them by giving him information he had no reason to know. The AJ indicated that it was not until she was terminated that Complainant raised for the first time CL's alleged conduct. On appeal, Complainant does not contest this. Based on the foregoing, the AJ determined that Complainant did not establish that she was subjected to sexual harassment and found that the termination of her employment was not in any way conditioned upon any requests for sexual favors.
The record indicates that on July 14, 2010, Complainant's then supervisor requested her termination due to her unacceptable conduct and performance and the Assistant Manager for Field Operations approved the termination effective July 18, 2010. Specifically, the supervisor indicated that on July 11, 12, and 13, 2010, Complainant was rude and hard to work with and lost her temper. Another supervisor also indicated that on June 30, 2010, Complainant, was arrogant, rude, and undermined her authority as her supervisor. Also, on July 2, 2010, stated the same supervisor, Complainant did not follow her instruction and was hostile. The AJ stated that the record indicates that Complainant did not agree with the manner in which the Agency was conducting its business and had a number of disagreements with her supervisors, which led to her termination. Upon review, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined and we agree that the Agency has articulated legitimate, nondiscriminatory reasons for the termination. Also, we agree with the AJ's determination that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. Upon review, we find that the AJ's factual findings of no discriminatory intent are supported by substantial evidence in the record.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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
10/12/12
__________________
Date
2
0120122260
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122260