0120122354
10-12-2012
Marlene B. Rivero, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Marlene B. Rivero,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120122354
Agency No. FS-2011-00210
DECISION
On April 28, 2012, Complainant filed an appeal from the Agency's March 22, 2012 final 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency subjected her to hostile work environment harassment on the bases of race, sex, age, or reprisal for prior protected EEO activity; and (2) whether Complainant established that the Agency denied her a reasonable amount of official time to work on her complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Realty Specialist, GS-1170-9, at the Agency's Shawnee National Forest, Mississippi Bluffs Ranger District in Jonesboro, Illinois. Complainant's First Level Supervisor was the Assistant Forest Ranger (S1). Complainant's Second Level Supervisor was the Forest Ranger (S2).1 Complainant's Third Level Supervisor was the Forest Supervisor (S3).
On March 2, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race (African-American), sex (female), age (52), and reprisal for prior protected EEO activity (EEO complaints filed in 2004 and 2007) when:2
1. On August 12, 2005, S2 denied her the use of a men's restroom and instructed her to use the restroom in the "shed" instead, despite her medical need;3
2. On August 12, 2005, S2 displayed a firearm target in his office and used the target as a form of visual harassment;
3. In June 2006, S2 took away her new truck and assigned her a dirty truck with tobacco spit stains and holes in the carpet as a replacement;
4. During various District safety meetings, S2 yelled at her and ridiculed her in front of co-workers and other District employees:
a. In December 2006, S2 interrupted a video she was presenting, directed her to give the participants a break, and later interrupted the video again.
b. In December 2007, S2 assigned her to address all the hazards that had been identified in a meeting she conducted.
c. In August 2009, S2 referenced her prior EEO complaint when he stated in a speech that it is ok if your supervisor "kick you in the hindie (butt), you still have to do the work."4
d. In June 2010, S2 told her to "speak up" when she was introducing herself to new employees.
e. On December 1, 2010, during her presentation, S2 stood up and shouted, "We do not have time for this," and directed her to "get on with it."
5. On November 5, 2010, S2 sent a disparaging email to S1 and several other supervisors about her accountability and character;5
6. On December 2, 2010, S3 ordered her to work at the Supervisor's Office (SO) even though she had requested to work at the Hidden Springs Ranger District, and S3 and S1 permitted S2 to handle the logistics regarding the alternative worksite, which resulted in S2's continued interference in her work performance and project timelines; and
7. On December 8, 2010, S1 denied her request for official time to work on her EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency analyzed incidents 1 - 4, 6, and 7 under a harassment framework and found that Complainant failed to establish a claim of hostile work environment harassment. Specifically, the Agency found that Complainant failed to show that management's articulated reasons for the actions complained of were a pretext for discrimination or that those actions were based on her race, sex, age, or prior EEO activity. Moreover, the Agency found that the actions complained of were not sufficiently severe or pervasive to constitute a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency erred in finding no discrimination. First, Complainant argued that the Agency's investigation was inadequate and requested a hearing before an AJ to present her complaint. Specifically, Complainant asserted that the Agency never responded to her April 13, 2011 letter of clarification in which she corrected incidents 2, 3, and 6 as defined in the Agency's acceptance letter6 and requested the inclusion of incident 5 as part of her harassment claim. Second, Complainant disputed the reasons articulated by management for the actions complained of and argued that that management failed to provide any evidence to support those reasons.7 Third, Complainant argued that the Agency's statements and actions during the mediation session for the instant complaint are indicative of guilt and culpability.
The Agency did not submit a statement or brief in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
Standard of Review
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 (EEO MD-110), at Ch. 9, � VI.A. (Nov. 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").
Adequacy of the Record
Our regulations provide that an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint and define an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. � 1614.108(b). While an agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, a complainant can also cure defects in an investigation, after reviewing the ROI, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. EEO MD-110, at Ch. 6, � XI; Ch. 7, � I.
Initially, we note that Complainant chose not to take advantage of the above-mentioned opportunities to cure any defects in the instant investigation. Moreover, our review of the record finds that the Agency's investigation is sufficient for a reasoned determination on Complainant's complaint. Although the Agency may not have defined incidents 2, 3, and 6 as precisely as Complainant preferred, we find that the record contains sufficient documentary and testimonial evidence about the events to allow for a determination. While the Agency did not formally investigate incident 5, we note that the record contains a copy of the November 5, 2010 email in question. Accordingly, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination occurred in the instant complaint.
Harassment (Incidents 1 - 6)
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). 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 v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
Upon review of the record, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the actions complained of were based on her race, sex, age or prior EEO activity. Moreover, we find that the actions, taken as a whole, are not sufficiently severe or pervasive enough to constitute a hostile work environment. Below, we will address each incident cited by Complainant as part of her harassment claim.
As an initial matter, we note that Complainant's appeal referenced the Agency's statements and actions during the mediation session for the instant complaint. The Commission recognizes confidentiality as one of the core principles of alternative dispute resolution (ADR), and finds that "[p]arties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." EEO MD-110, at Ch. 3, � VII.A.3. Without the maintenance of confidentiality, there would be a chilling effect on the utilization and success of ADR. Therefore, all comments made during a confidential mediation will remain confidential and cannot be later used as evidence of discrimination.8
Regarding incident 1, the undisputed record reflects the following: (i) on February 20, 2005, S2 sent an email to all employees directing them not to use the opposite gender's restroom; and (ii) on June 21, 2005, S2 observed Complainant exiting the men's restroom. S2 averred that he sent out the email because he had received several complaints from employees about Complainant using the men's restroom. In addition, S2 averred that, on August 12, 2005, he verbally counseled Complainant about her June 21, 2005 use of the men's restroom in violation of his email instruction and offered her the alternative options of using the unisex restroom in the Carpenters/Mechanics Shop or the women's restroom at the Lincoln Memorial. On appeal, Complainant argued that the Agency failed to provide any evidence that there were complaints about her restroom usage. In addition, Complainant argued that using the alternative restrooms, which were located farther away, would have resulted in her urinating on herself. We find that, beyond her bare assertions, Complainant has produced no evidence that S2's actions were based on her race, sex, age, or prior EEO activity. Although the record contains no documentary evidence of employee complaints, we do not find it unreasonable that the Agency would direct its employees not to use the opposite gender's restroom. In addition, we note that Complainant provided no documentary or testimonial evidence from other employees that her use of the men's restroom was not an issue. We emphasize that Complainant has the burden of proving that the Agency's actions were discriminatory.
Regarding incident 2, the undisputed record reflects the following: (i) on August 12, 2005, S2 and Complainant met in S2's office to discuss the restroom incident; (ii) mounted on the back of S2's office door was a display of a silhouette target containing bullet holes; and (iii) pursuant to a complaint from Complainant and an August 19, 2005 memorandum from S3, S2 took down the target. S2 averred that the target came from a training session he attended at the Federal Law Enforcement Training Center (FLETC) and that he hung it in his office because he "was proud of how he did" at the training. In addition, S3 averred that the target came from a training session at FLETC that he and S2 attended. On appeal, Complainant argued that the Agency failed to provide any evidence that S2 and S3 attended a training session at FLETC. In addition, Complainant argued that S2 intended the target to visually harass, harm, and threaten her. We find that, beyond her bare assertions, Complainant has produced no evidence that S2's actions were based on her race, sex, age, or prior EEO activity. Although the record contains no documentary evidence that S2 or S3 attended training at FLETC, we note that Complainant provided no evidence that S2 and S3 lied about the origin of the target or that S2 placed the target in his office because of her membership in a protected class. Again, we emphasize that Complainant has the burden of proving that the Agency's actions were discriminatory.
Regarding incident 3, the undisputed record reflects the following: (i) in June 2006, Complainant was issued a new truck; (ii) on or about June 19, 2006, Complainant was informed that the new truck mistakenly and inadvertently went to her and the plan was for her to get a hold-over truck; (iii) the hold-over truck Complainant received had tobacco spit stains and holes in the carpet; and (iv) after Complainant complained about the condition of the hold-over truck, management had it cleaned. S2 averred that he assigned the new truck to a new employee who was in the field 90 percent of the time of the time and the hold-over truck to Complainant because she rarely went into the field. In addition, S2 averred that he was unaware of the hold-over truck's condition until Complainant brought it to his attention. On appeal, Complainant argued that the truck reassignment was in retaliation for her prior EEO activity. In addition, Complainant argued that no one in her chain of command informed her, prior to June 19, 2006, that the new truck was meant for another employee. We find that, beyond her bare assertions, Complainant has produced no evidence that S2's actions were based on her race, sex, age, or prior EEO activity. Complainant did not show that S2 assigned her the hold-over truck for reasons other than those he stated or that he knew about the condition of the hold-over truck prior to assigning it to her.
Regarding incidents 4a-4e, Complainant argued on appeal that S2 had targeted her during several District safety meetings over the years. Assuming that the incidents occurred as alleged, and although S2's behavior may have been rude, we find that Complainant has produced no evidence that S2's conduct was based on her race, sex, age, or prior EEO activity. Moreover, despite Complainant's subjective belief that S2 was harassing her, we find that, evaluated from the objective viewpoint of a reasonable person in Complainant's circumstances, S2's conduct as described was not sufficiently severe or pervasive to create an abusive working environment. We note that these five incidents occurred over a four-year period.
Regarding incident 5, the record contains the following November 5, 2010 email from S2:
Does anyone know where [Complainant] is this week? I have not seen her since about monday and she is not signed out on our signout board. She also missed our safety meeting on wednesday. Does anyone know if she made the one at Vienna or the SO for this month? She has had one visitor that has come in every day this week needing to talk to her, and we have nothing to tell him about where she is or when she might be in contact with him. We are only able to provide lousy customer service to him.
In an email response on November 8, 2010, Complainant acknowledged that she forgot to put her planned absences on the signout board, but stated that she had discussed her absences with S1 prior to being gone. Complainant argued on appeal that the "email was falsely worded to give the appearance of irresponsibility and lack of professionalism." We find that, beyond her bare assertions, Complainant has produced no evidence that S2's email was based on her race, sex, age, or prior EEO activity. It appears that S2 sent the email because he was trying to determine Complainant's whereabouts. We note that Complainant admitted, as stated in S1's email, that she did not sign out on the signout board.
Regarding incident 6, the undisputed record reflects the following: (i) on December 2, 2010, S3 sent Complainant an email requesting that she temporarily report to the SO Lands Shop effective December 3, 2010 and stating that S1 would supply transportation for her during this period; and (ii) in contrast to the email, S2 made the arrangements regarding Complainant's transportation. S3 averred that he placed Complainant in the SO because much of the work she performed related to the Lands Shop located there and he had space available in the Lands Shop. In addition, S3 averred that S2 made arrangements with the Forest Ranger at the Hidden Springs Ranger District for Complainant to obtain a vehicle. On appeal, Complainant disagreed with S3's decision to assign her to the SO, noted that S3's email specifically instructed S1 to handle her transportation issues, and felt that S2's handling of the transportation issues allowed him another opportunity at reprisal. We find that, beyond her bare assertions, Complainant has produced no evidence that management's actions were based on her race, sex, age, or prior EEO activity. We note that when Complainant expressed concern about picking up a vehicle from a certain location, she was allowed to pick one up from her preferred location.
As Complainant chose not to request a hearing, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. While Complainant and S2 appeared to have a personality conflict, we are simply not persuaded, based on the record before us, that Complainant has shown that S2's actions were based on her race, sex, age, or prior EEO activity.
Official Time (Incident 7)
Complainant asserted that S1 denied her official time to work on her EEO complaint on December 8, 2010. EEOC Regulation 29 C.F.R. � 1614.605(b) provides that if a complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. The Commission has stated that an allegation pertaining to the denial of official time states a separately-processable claim alleging a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. See Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). Essentially, the Commission has held that it has the authority to remedy a violation of
29 C.F.R. � 1614.605 without a finding of discrimination. Id. The Commission has held that such a claim should not be processed in accordance with 29 C.F.R. � 1614.08, since the focus is not on the motivation, but rather the justification of why the complainant was denied a reasonable amount of official time. Id.
Here, we find that Complainant provided insufficient evidence to establish that the Agency denied her a reasonable amount of official time on December 8, 2010 to work on her EEO complaint, which was filed March 2, 2011. The undisputed record reflects the following: (i) on December 8, 2010, Complainant spoke with S1 on the phone about her EEO complaint; (ii) in a January 3, 2011 email, Complainant informed S1 that she had requested official time on December 8, 2010, that his answer was no, and asked if his answer was the same in light of
29 C.F.R. � 1614.605(b); and (iii) in a January 4, 2011 email, S1 told Complainant that he must have misunderstood her original request and granted her request for official time that day. Complainant and S1, however, gave different versions about what transpired during the December 8, 2010 phone conversation. Complainant averred that she told S1 she was going to file an EEO complaint and asked for official time to work on the complaint. In addition, Complainant averred that S1 told her that even if he could allow her the time, he would not. In contrast, S1 averred that Complainant did not ask for official time to work on her EEO complaint but instead requested permission to file an EEO complaint. In addition, S1 averred that he told Complainant that she did not need his permission to file an EEO complaint. We note that there is no other documentary or testimonial evidence to corroborate either Complainant's version of the December 8, 2010 conversation or S1's version of the December 8, 2010 conversation. Accordingly, we find that Complainant has not shown that she was denied official time to work on her EEO complaint on December 8, 2010.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final 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
___10/12/12_______________
Date
1 S2 retired from the Agency in December 2010, but provided an affidavit for the EEO investigation.
2 For purposes of clarity, we have renumbered and rephrased some of the incidents based on Complainant's formal complaint and affidavit.
3 Complainant has a medical condition which causes frequent urination. Complainant averred that she used the men's restroom when the women's restroom was occupied because of her urgency to urinate. We note that Complainant did not allege that the Agency denied her a reasonable accommodation on the basis of her disability.
4 In a prior EEO complaint, Complainant alleged that her former First Level Supervisor kicked, slapped or swatted her.
5 We note that the Agency did not accept this claim for investigation and did not address it in its final decision.
6 For example, Complainant asserted that the Agency's definition of incident 2 did not state that S2 used the target as a form of visual harassment. In addition, Complainant asserted that the Agency's definition of incident did not state that S2 took away a new truck and assigned her the other truck as a replacement. Further, Complainant asserted that the Agency's definition of incident 6 did not state that S3 ordered her to work at the SO, even though she requested to work out of the Hidden Springs Ranger District.
7 In our analysis, we will discuss Complainant's arguments on appeal in greater detail.
8 Moreover, we note that Commission policy states that, "[n]othing said or done during attempts to resolve [a] complaint through ADR can be made the subject of an EEO complaint." EEO-MD-110, 3-3.
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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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