0120110616
06-11-2012
Gaitee A. Hussain, Complainant, v. Jeffery N. Trimble, Executive Director, Broadcasting Board of Governors, Agency.
Gaitee A. Hussain,
Complainant,
v.
Jeffery N. Trimble,
Executive Director,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120110616
Agency No. OCR1001
DECISION
On October 28, 2010, Complainant filed an appeal from the Agency's September 24, 2010, final decision (Decision) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an International Broadcaster/Producer at the Agency's Voice of America facility in Washington DC.
On October 14, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Muhajir), sex (female), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On November 4, 2008, and on April 1 and April 9, 2009, Complainant was yelled at and berated by a male co-worker;
2. On February 6, 2009, management accused Complainant of allowing a listener to criticize a colleague on a radio show hosted by Complainant in January 2009, and barred Complainant from hosting live shows;
3. The Agency did not renew Complainant's contract and her last day working for the Agency was June 30,2009;
4. On June 9, 2009, Complainant's co-workers were not allowed to hold a farewell party for her;
5. On March 1 and 2, 2010, Complainant's former supervisor (S: American, female), during meetings with her staff, raised the subject of Complainant's EEO complaint and discussed specific details about the complaint with her staff. During these same meetings, S told her staff that she would be receiving copies of the testimony provided by each witness in Complainant's EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision initially concluded that Complainant failed to state a claim because she was a contractor and not a Federal employee. The Agency further found, however, that assuming arguendo that Complainant was a Federal employee, she failed to prove that the Agency subjected her to discrimination as alleged. Specifically, with regard to claim 1, the Agency found that the actions complained of were insufficiently severe and/or pervasive to state a claim of harassment and that Complainant failed to show that such actions were based on her protected bases. With regard to claims 2, 3, and 4, the Agency found that Complainant failed to establish a prima facie case because none of the management officials were aware of her national origin or her prior EEO activity, and further, the Agency articulated legitimate nondiscriminatory reasons for its actions that Complainant failed to show were pretextual. With regard to claim 5, the Agency found that there are mitigating factors that preclude a per se finding of reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she should not be considered a contractor but should be viewed as a Federal employee for purposes of this decision. Complainant further argues that she submitted abundant evidence to support her claims, but that the Agency failed to address such evidence in its decision. The Agency did not submit an appeal brief.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
We note that the Agency initially found that Complainant failed to state a claim because she was a contractor and not a Federal employee. The Agency, however, then proceeded to address the merits of Complainant's complaint.
Hostile Work Environment
Complainant alleges that in November 2008, her coworker (CW1: Punjabi, male) confronted her in the office in front of other coworkers, yelled at her and accused her of causing his wife (CW2: national origin unspecified, female), who worked alongside Complainant as a producer for Complainant's radio show, to have a miscarriage by putting CW2 under too much stress and overworking her. CW1 also told Complainant that she was giving preferential treatment to the show's other producer, (CW3: Pakistani, female) because CW3's husband was the Service Chief of another US government radio station. In addition CW1 continually made snide comments directed at Complainant about the importance placed on a music show and Complainant's inability to handle more difficult matters like politics. Complainant maintains that his behavior increased tensions between Complainant and CW2 who continually failed to find Complainant's music selections for her shows and made it an impossible work situation for Complainant. Complainant next alleges that CW1 yelled at her again on April 1, 2009 and told her to translate some items for him and when Complainant complained to S, she was told to do the work CW1 had asked for. On April 4, 2009, Complainant contends that CW1 "was very angry. He kept making mean comments about my capacity to do more intellectual work, like his political show," Report of Investigation (ROI), p. 80, and unfavorably comparing Complainant's music-oriented radio program with his political radio program. Finally, Complainant also alleges that on February 9, 2009, S falsely accused Complainant of allowing a listener to criticize another radio presenter and colleague of Complainant's (CW4: Pakistani, female) on a radio show hosted by Complainant in January 2009.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record, we find initially that Complainant is essentially alleging two separate claims of harassment, one perpetrated by CW1, involving the incidents in November 2009 and April 2009, and a second claim involving S, occurring in February 2009. With regard to both allegations, we find that Complainant has not set forth an actionable claim of harassment because she has not shown that she was subjected to unwelcome verbal or physical conduct that was either based on or involved her national origin or sex. Instead it appears from the record that, with regard to the actions of CW1, such behavior was based on his subjective belief that his work on political radio programs was more important and worthwhile than her work on musical radio programs. While Complainant argues that CW1 had produced musical radio programs in the past and that it was therefore "uncanny that he suddenly developed a problem producing a music show," we do not find such an apparent change of heart in the least bit uncanny since the fact that may have produced such programs in the past in no way implies he did not harbor disdain for them even while he produced them. In any event, even assuming arguendo that CW1 did have a change of heart about the relative merits of the two types of programs, Complainant has not shown that CW1's actions were based on or involved her national origin or her sex. Similarly, she has not shown that S's actions in allegedly falsely accusing Complainant of allowing a radio listener to criticize CW4 were based on or involved her national origin or her sex. Finally, we also find that Complainant has not shown that the actions complained of in either claim were sufficiently severe as to constitute harassment.
Disparate Treatment
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
Complainant alleges that S, the Division Chief (DC: Afghan, female) and Program Manager (PM: American, male) barred her from performing live radio programs due to a false accusation that Complainant had allowed a radio listener to criticize CW4 on air. The Agency found initially that Complainant failed to establish a prima facie claim of discrimination based on national origin because neither S, DC, nor PM were aware of Complainant's national origin of Muhajir. Furthermore, the Agency found, the incident involved a feud between Complainant, CW4, and CW1 that "spilled on to air time," see Decision, p. 10, during which they criticized each other on-air and allowed radio listeners who called in to the programs to also criticize the hosts and each other. Id. The Agency noted that CW4 and CW1 were also disciplined about the incidents, with CW1 being disciplined more severely than Complainant, and thus Complainant cannot show that she was treated differently. Finally, the Agency found, even assuming Complainant established a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for its action, see Burdine, and Complainant failed to show that such an articulated reason was a pretext for discrimination. See id. Specifically, the Agency argues that while Complainant disputes her responsibility for the incident, "the ROI is clear that there were inappropriate comments made on-air from callers and that they were handled unprofessionally." Decision, p. 12. The Agency noted that a transcript of the radio program in question confirms that after CW4 permitted a listener (Caller 1) on her program to call in and criticize Complainant and her radio program, Complainant later allowed a different caller (caller 2) to criticize Caller 1 on air and defend Complainant. See ROI, p. 122.
Complainant argues that other radio presenters also engaged in various forms of misconduct or unprofessionalism but were not punished as harshly as she was. See ROI, p. 83. However, the Agency argued in its Decision that Complainant has not shown that such misconduct or unprofessionalism was as serious as hers while confirming that others outside of her protected bases were also disciplined for infractions, thus showing that she was not singled out based on her national origin or sex. See Decision, p. 12. Following a review of the record, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext for prohibited discrimination.
With regard to Complainant's contract not being renewed, the Agency articulated a legitimate nondiscriminatory reason for its action when S averred that the reasons for not renewing Complainant's contract included,
ongoing conflicts with coworkers, her chronic lateness (notwithstanding repeated warnings) her misbehavior on air, her inability to handle political or other complicated materials and pursuing independent projects without performing her primary supporting production role [and the fact that Complainant was billing too high] yet I had contractors performing at a much higher level earning far less.
ROI, p. 177.
The burden next shifts to Complainant to establish that such a reason is a mere pretext for discrimination. Burdine, 450 U.S. at 252-53. Complainant averred that she "thought she was doing what management asked her to do" ROI, p. 82, and that her work was so thorough that a few weeks before being notified of the non-renewal, management had received a letter of commendation for her from the engineers union. See id. Complainant, however, did not address any of the reasons provided by S for the non-renewal and has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination.
With regard to the fact that Complainant's coworkers were not allowed to hold a farewell party for her, we note initially that Complainant did not specify who was allegedly responsible for preventing the party. The Agency found that one of Complainant's colleagues (CW5: Kurdish, female) averred that she was out of the country when Complainant left the Agency, and when she returned she "asked [PM] if it is a good idea to have a party for [Complainant]. He told me that is a great idea but she is gone." ROI, p. 314. A review of the record also shows that S averred that anyone can throw a going-away party and it does not require management permission. ROI, p. 178. Complainant has not addressed these statements and has not met her burden of showing that the Agency's denial that coworkers were prevented from holding a going-away party for Complainant is a pretext for discrimination or reprisal.
Finally, with regard to Complainant's allegation that S raised the subject of Complainant's EEO complaint during a meeting with Agency staff, the Agency found that S informed employees about Complainant's EEO complaint because of questions being raised by staff members who wanted to know why they were being contacted by the EEO investigator, who the investigator was, whether or not they had to answer the investigator's questions, what the matter was about, and whether or not management would help them answer the affidavits. The Decision found that S explained the investigator's role and provided guidance to employees about their responsibilities as witnesses in the EEO process. The Agency recognized that while "it is ill advised for a manager or supervisor to have any discussion whatsoever with their staff about an employee's EEO complaint" a number of factors "mitigate in favor of [managements actions] not constituting a per-se violation." Decision, p. 20. Such factors included S's contention that the meetings were held because of questions raised by staff and contractors "regarding their obligations during the EEO complaint process," the fact that S did not attempt to prevent or hinder employees "from participating in the EEO process" but told them of their responsibility to cooperate with the investigation, and the fact that she referred them to the Agency's Office of Civil Rights or the Office of General Counsel for questions. See id. The Agency concluded that in view of these factors, there was no per se violation.
We note that the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Following a review of the record, we agree with the Agency that there was no per se violation of the retaliation clauses because the preponderance of the evidence does not support a finding that Complainant incurred any adverse treatment or that the meetings were based on a retaliatory motive. We note that by the time the meetings were held in March 2010, Complainant was no longer working at the Agency. As regards a retaliatory motive, employee affidavits show that S did not attempt to dissuade or hinder employees but rather told them of their responsibility to cooperate with the investigation, indicating that her motive was not retaliation against Complainant but rather cooperation with the EEO process. See Nurriddin v NASA, EEOC Appeal No. 0120023148 (September 30, 2004)(No retaliation found where Supervisor's action in using profane language in discussing EEO complaints was not shown to have been based on a retaliatory motive). We further note, however, that the Agency correctly appreciated the potential "chilling effect" of such meetings and we caution that our finding is only based on the particular facts of this case where the evidence suggests that S's actions in holding the meetings were to encourage cooperation with the EEO process rather than the reverse.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination or reprisal occurred. We therefore AFFIRM the Decision.
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
June 11, 2012
__________________
Date
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0120110616
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110616