0120122502
10-26-2012
Kenny J. Lee, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Kenny J. Lee,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122502
Agency No. ARPOM10OCT04837
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 13, 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 Assistant Professor, AD-1701-00, at the Agency's Directorate of Continuing Education, Defense Language Institute in Monterey, California.
On February 11, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the basis of sex (male) when:
1. on October 18, 2010, he received a final decision from his first-line supervisor on a Notice of Warning dated October 5, 2010, for unprofessional conduct, that had been issued to him by his third-line supervisor; and
2. on October 1, 2010, he received an annual performance rating of "3."1
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on April 13, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its April 13, 2012, the Agency found no discrimination. The Agency found that assuming, for the sake of argument only, that Complainant established a prima facie case of sex discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. This appeal followed.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, Complainant's former first-line supervisor (Supervisor 1) was deciding official to issue Complainant the October 5, 2010 Notice of Warning for unprofessional conduct. Specifically, Supervisor 1 stated that on September 14, 2010, she was notified that at one student stated that on one occasion, Complainant "mentioned a homosexual story about something that he saw when he was in San Francisco in the classroom and it made a female student in the classroom embarrassed and uncomfortable."
S1 stated that when she asked Complainant about the alleged incident, Complainant said that he did not remember "whether he told it or not, but he told me that he - actually, he did not deny that fact, that part. So - - and he told me 'if I told that, maybe I told it in the classroom while I'm teaching.' So first, he made student uncomfortable in the classroom. So I think - - as a branch chief, when you think about the harassment, you think about the - - the student. Even if the person who did had no intention about that, the other person has that kind of feeling, then we think - - that's not professional. So that's - - the main reason for me to issue warning of notice."
The record reflects that in the October 5, 201 Notice of Warning, Supervisor 1 placed Complainant on notice that another student commented that Complainant "seemed burnt out and disgruntled." Supervisor 1 also stated that students made the following comments about Complainant that if the students "did not understand something, [Complainant] made us feel stupid for not understanding" and "he brought in some articles that were highly inappropriate and may have been considered offensive." Supervisor 1 further notified Complainant that these types of comments from the students "are unacceptable and not conducive to the advanced learning environment we strive to promote within the Resident Program and the School of Continuing Education...You should have known that your conduct would reflect poorly on you as a teacher, the teaching profession and FLIFLC. Such unprofessional conduct detracts from the efficiency of the service we provide. It is expected that you will take necessary measures to ensure you are promoting a positive learning environment. You should be aware that future offenses may result in more severe discriminatory action up to and including your removal from Federal Service."
Supervisor 1 stated that the Notice of Warning is "not disciplinary action. So this is ... informal [and that Complainant is] to realize that that's not professional. Even though he didn't have that intention, anyway, if the result of the action makes student uncomfortable, then I think that's not professional way for him to do in the classroom." S1 stated that her supervisor, also Complainant's third-line supervisor, "did not direct, instruct, or order me to issue the Notice of Warning. Although we met and discussed this action, the ultimate decision was mine." Moreover, S1 stated that she did not discriminate against Complainant based on his sex.
Regarding claim 2, Supervisor 1 was Complainant's rater for the rating period ending September 30, 2010. Supervisor 1 stated that she reviewed the instructors' performance in the Korean Branch based on the Total Army Performance Evaluation System (TAPES) "that they provided and my own assessment of their performance." S1 stated that she gave Complainant an overall rating of 3. The record reflects that Complainant's performance was rated on nine standards. S1 stated that she gave Complainant an Excellent (E) rating in standards 1, 3, 4, 7 and 9, and a Successful (S) rating in standards 2, 5, 6 and 8.
With respect to Complainant's allegation that he received an E for standard numbers 3, 4, and 7 for the 2009 rating period but received an S for the same standard numbers for the 2010 rating period, Supervisor 1 stated that Complainant's 2010 rating "was based on TAPES that he provided and my own assessment of his performance." Supervisor 1 further stated that in comparison to the 2009 rating period, Complainant "did the minimum requirement which were requested on the Standards in FY 2010. Thus, he met the requirement, but didn't not exceed in most of the standards."
Regarding standard number 3, Supervisor 1 stated that in 2009, Complainant worked as a Primary Instructor of 21506KP00109, and that he "designed the curriculum for the class and developed teaching materials with dramas and homework for students through the year. That was the reason for him to have 'E' in FY2009." S1 further stated "in 2010, the only class that [Complainant] taught as a member of teaching team was the Refresher course 21541KP00210 (05/27/10-09/16/10). The only contribution of [Complainant] for this class was to make an instruction schedule from 9 August, 2010 to 16 September, 2010. In [an] other period in 2010, he assisted [an]other teaching team as a floating instructor. He made teaching materials for the class that he taught and satisfied the minimum requirement that the Standard #3 required. I didn't notice any exceeding elements in his performance related with Standard #3 and assigned 'S' in FY2010."
Regarding standard 4 number, Supervisor1 stated that in 2009, Complainant tried to raise the target language proficiency in class and "designed roundtable discussions in the instruction schedules, Special Assistance, one-on-one speaking, writing presentation, and so on with the students of 21506KP00109 (11/06/08-11/05/09) through the year." As for the 2010 rating period, Supervisor 1 stated that Complainant "minimally did one-on-one speaking practice with students and Special Assistance with the students of 21541KP00210 (05/27/10-9/16/10). In addition, his target language was not well maintained in his class. He easily used English when he was difficult in explaining words, phrases, or sentences."
Regarding standard number 7, Supervisor 1 stated that in for the 2009 rating period, Complainant was a primary instructor and "he initiated the teamwork with the co-instructor teaching 21506KP00109 through a year and worked as a representative as a Reverse Evaluation for Korean, Chinese, and Russian. In FY 2010, I didn't any exceeding element for him. What he wrote on the TAPES was the generally required to all instructors."
Supervisor 1 stated that during the 2010 rating period, she met with Complainant in October 2009 and April 2010, and "confirmed that he understood the requirement inside the Standard. Also I had a class observation on September 29, 2010 and DA performance observation on June 2, 2010 for [Complainant] and provided feedbacks immediately after each observation." Furthermore, S1 stated that Complainant's sex was not a factor in her determination to give him an overall rating of 3.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part 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).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
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. 05970727 (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, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his sex.
Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not obtaining significant witness statements and relevant documents. We note Complainant's extensive arguments on appeal, which include but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; the Agency's purported failure to review the evidence in the light most favorable to Complainant; and the efforts of a third line supervisor (Supervisor 3), to take every measure possible to ruin Complainant's career. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements 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
October 26, 2012
__________________
Date
1 The record reflects that claim 2 was later amended to the instant formal complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122502
8
0120122502