U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite W.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120141902 Hearing No. 430-2013-00051X Agency No. FS-2012-00139 DECISION Complainant filed an appeal from the Agency's May 8, 2014, 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 whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused her discretion when she denied Complainant's request for a hearing, and whether the Agency properly found that Complainant did not prove that she was subjected to discrimination on the bases of age, race, sex, and in reprisal for prior EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Service Assistant, GS-7, at the Agency's Oconaluftee Job Corps Conservation Center in Cherokee, North Carolina. In this position, Complainant managed a female dormitory on the Job Corps campus by presiding over living arrangements and providing counseling to students in her dormitory. During the relevant period, Complainant was supervised by two different first-line supervisors (S1a and S1b). S1a is a Caucasian male who was 33 years old in August/September 2012, and S1b is a Caucasian male who was 73 years old in August/September 2012. Complainant's second-line supervisor (S2) is a Hispanic male who was 42 years old in August/September 2012. On March 5, 2012, (and subsequently amended), Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), age (58 years old), and in reprisal for prior protected EEO activity when: 1. On December 11, 2011, Complainant's leave request was denied; 2. She was harassed by the following actions: a. On March 22, 2012, Complainant's supervisors attempted to pressure her into performing work that would impede upon or completely obviate her day off; b. On March 14, 2012, management claimed to be unaware that her dormitory was missing various appliances and supplies, although she had previously reported the issue; c. On March 11, 2012, March 18, 2012, and other dates, Complainant's supervisors watched her when she visited the bathroom, left the building, or remained in her vehicle to eat dinner; d. On March 1, 2012, Complainant's supervisors implicitly threatened her with termination for not addressing an incident through the chain of command after they observed her conversing with the Center Director; e. On February 27, 2012, and other dates, Complainant was questioned about her age when she was told she was too young to be so forgetful; f. On February 26, 2012, March 18, 2012, and other unspecified dates, Complainant was ordered to complete various tasks, such as transporting students on field trips, although lower grade-level Caucasian employees were available to complete such work; g. On February 18, 2012, and other unspecified dates, Complainant's supervisor repeatedly reminded her that she was not being paid for being at the Center after her shift or that it was her time to get off and go home, to such an extent that on February 29, 2012, her supervisor instructed her that she must complete all assignments by 11:30 p.m., exit the dormitory, and leave the Center premises at the end of her tour; h. On February 12, 2012, and February 25, 2012, Complainant's supervisor belittled, embarrassed, or laughed at her during staff meetings when her dormitory activities were discussed or she raised an issue; i. On December 13, 2011, Complainant learned that her submitted student disciplinary reports were not accepted; j. On December 7, 2011, Complainant's supervisor belittled and demeaned her in front of students and coworkers when he spoke to her and looked at her with a strange facial gesture; k. On November 12, 2011, a coworker made negative facial gestures and comments toward her by looking like she had seen a ghost and saying to her, "Who's working today?" and "What's your problem?;" and l. On unspecified dates, Complainant's coworkers would not speak to her/avoided her, or conversely, talked to her in a loud or belligerent manner, attacked her with loud speech during meetings with students and supervisors, and undermined her authority with students. 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 AJ. Complainant requested a hearing. On October 29, 2013, the AJ issued a scheduling order that set the deadline for filing a pre-hearing report as well as scheduled a pre-hearing conference and hearing. The order stated that pre-hearing reports must be filed by January 21, 2014, a pre-hearing conference call would be held at 1:00 p.m. on February 3, 2014, and a hearing would be held February 19, 20 and 21, 2014. The Agency filed a pre-hearing report on January 21, 2014, but Complainant did not file a pre-hearing report. During the pre-hearing conference, Complainant informed the AJ that she did not file a pre-hearing report. On February 4, 2014, the AJ issued an order to show cause, to which Complainant responded that she was unable to file a pre-hearing report because she did not realize she had to submit the report by January 21, 2014, and was recuperating from an injection on January 13, 2014. The AJ found that Complainant's explanation was unpersuasive and remanded the complaint to the Agency for a decision on the record. Final Agency Decision 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 and harassment as alleged. Specifically, the Agency found that Complainant did not establish prima facie cases of age and sex discrimination with respect to claim 1, although she established prima facie cases of reprisal and race discrimination. However, the Agency found that Complainant did not show that the Agency's non-discriminatory explanation was pretext for unlawful discrimination. Regarding claim 2, the Agency found that Complainant did not prove that she was subjected to unlawful harassment because the alleged actions were not severe or pervasive enough to constitute a hostile work environment. The Agency also found that Complainant did not prove that the actions were motivated by discriminatory animus. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant maintains that she was unable to obtain an attorney to represent her in this matter and was confused about paperwork because she underwent medical procedures. Complainant also reiterates her claim that she has been harassed because of her age, sex, race, and EEO activity. The Agency does not present any arguments in opposition to Complainant's appeal. 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 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (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"). Sanction: Request for a Hearing Denied The AJ denied Complainant's request for a hearing as a sanction for Complainant's failure to submit a pre-hearing report. The Commission's regulations afford broad authority to AJs over the conduct of hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See 29 C.F.R. § 1614.109 et seq.; EEO MD-110, at Chap. 7, § III.D. at 7-11. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. Where a complainant has failed to comply with an AJ's order through simple negligence, and not contumacious conduct, a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, such as remanding the complaint to the Agency for a final decision. Id.; Bearden v. U.S. Postal Serv., EEOC Appeal No. 0120065258 (May 29, 2008) (affirming dismissal of the hearing request and remanding the case to the Agency for final agency decision where Complainant repeatedly failed to respond to discovery requests or comply with the AJ's orders). Upon review of this matter, the Commission finds that the AJ did not abuse her discretion in dismissing Complainant's request for a hearing as a sanction for not complying with her orders. The AJ's October 29, 2013, Scheduling Order set forth the January 21, 2014 deadline for filing pre-hearing reports and advised both parties that failure to fully comply with the AJ's orders could result in sanctions, including dismissal or default judgment. The Commission is not persuaded by Complainant's arguments on appeal and finds that the imposition of a sanction in this case did not constitute an abuse of discretion in light of Complainant's failure to comply with the AJ's orders. In so finding, we note that Complainant had over two months' notice that she must submit a pre-hearing report. We also note that Complainant filed a motion to amend and consolidate with the AJ on January 15, 2014, a mere six days before the deadline for submitting the pre-hearing report. Because the sanction of dismissing the hearing request was within the AJ's discretion, we further find that the AJ properly remanded the case to the Agency to issue a decision on the record. See Salas v. U.S. Postal Serv., EEOC Appeal No. 0120113583 (AJ did not abuse discretion where hearing request dismissed because Complainant did not timely file a pre-hearing report). Disparate Treatment Claim 1 alleges that Complainant was subjected to disparate treatment because of her age, sex, race, and previous EEO activity. In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). In this case, for purposes of analysis, we assume arguendo that Complainant established a prima facie case of discrimination on each alleged basis for claim 1. Nonetheless, we find that the Agency provided a legitimate, non-discriminatory explanation for its actions. Specifically, S2 stated that he denied Complainant and others requested leave during the period of mandatory training, and he asked them to reschedule leave around the training. In an effort to prove pretext, Complainant stated that five GS-5 Caucasian employees were approved for leave during the same period for which she had requested leave. However, the Director2 stated that the union came to her on behalf of employees who had requested leave during the period that conflicted with mandatory training, but their request was never approved, although she granted leave to all staff after mandatory training was completed. Complainant has not provided any evidence that proves that similarly-situated employees were granted leave during mandatory training. Consequently, we affirm the Agency's finding of no discrimination for claim 1 because Complainant did not prove that the Agency's non-discriminatory explanation for its actions is pretext for unlawful discrimination. Harassment In order 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 environment, 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 Ch. 1982). In this case, with respect to claim 2a, management explained that an email was sent out one month before required training to remind managers of the completion date. Management further stated that it maintained a list of employees assigned to drive and made driving assignments on a rotational basis. Management also stated that Complainant was expected to drive because driving assignments are rotated evenly among staff as a responsibility shared by all Job Corps staff. Regarding claim 2b, management stated that Complainant said she was missing appliances and office supplies, and S1b responded that he would help her look for the missing items, except for the remote control because it was inexpensive to replace. S2 stated that because Complainant did not know when the vacuum cleaner became missing, he asked if she had thoroughly searched for the item. Regarding claim 2c, S2 stated that he had no concerns regarding Complainant's comings and goings, but he went to the cafeteria because purchases there were cheaper than at other vendors. S1b stated that he would never watch Complainant going to the cafeteria or restroom but has seen her in the cafeteria when he went there to make purchases. Regarding claim 2d, management stated that it supported the policy of using the chain of command as the most effective and expeditious way to resolve problems because supervisors should have the first opportunity to resolve problems. S2 stated that he expressed this sentiment at several staff meetings with comments that were directed to the entire staff, never solely directed to Complainant. With respect to claim 2e, S1b stated that he questioned Complainant about her age in "a spirit of good cheer" without any intent to harm. S1b further stated that he remembers Complainant "turned the tables" on him when he failed to honor a request he made. Regarding claim 2f, S1b stated that the Recreation Department is part of Residential Living, and therefore, under his supervision. He stated that driving assignments are made on a rotational basis or based on who is available, and when it is time for Complainant to drive, he expected her to drive. S2 stated that he maintains the schedule and spreads driving assignments around between GS-5s and GS-7s as a shared responsibility. Regarding claim 2g, S1a stated that when he noticed Complainant staying past her shift, which ended at 11:30 p.m., he reminded her that her shift had ended, and if there was a need to work past her shift, she should request overtime in advance. S1a further stated that Complainant was aware of the overtime rules, but did not comply with them. S1a also stated that Complainant would work past her shift, and when she got off work, would hang around to talk to workers reporting for the next shift, which impeded them from signing in and starting work; therefore, he asked her to sign out when her shift ended and to leave the premises. S1b stated that on several occasions, Complainant worked past her shift, and he asked her to go home in order to make room for the midnight shift that needed office space and equipment that she was occupying. S2 stated that he became concerned that Complainant was logging out as late as 1:30 a.m., despite her shift ending at 11:30 p.m. Regarding claim 2h, S2 stated that he has never laughed at or belittled Complainant at staff meetings or anywhere else. S1a stated he does not recall ever not taking Complainant seriously at a staff meeting or anywhere else. Regarding claim 2i, S1a stated that Complainant wrote disciplinary reports on a group of her students that caused unnecessary disruptions and protests because they were counterproductive to the Job Corps goal of trying to create an atmosphere that is supportive and positive for students seeking a career path. S1a further stated that writing disciplinary reports for minor room violations is not the way to attain that goal, and S1 rightfully counseled Complainant. S1 stated that about 20 students came to him to complain that Complainant had conducted an unannounced inspection and written them up for violations. S1 further stated that the inspection was very disruptive to the dormitory population, and students were afraid because their beds were not made up and shoes were not properly stowed. S1 stated that he told Complainant that Job Corps does not have surprise dormitory inspections and it was not a prison or the military. Regarding claim 2k, S1b stated that Complainant and the coworker involved in this matter had a long history of run-ins that became so disruptive that he brought them together to try to mediate their differences, but it was not successful, and the feud continued until the coworker left the Job Corps. Regarding claim 2l, S1a stated that on several occasions, Complainant became loud and spoke over others, who responded by doing the same to her. S1a stated that supervisors intervened when this occurred to moderate the discussion, and he has not seen any coworker gang up on Complainant. S1b stated that he cannot tell staff whom to associate with on a social basis, and he has noticed that some staff seem to avoid socializing with Complainant. S1b stated that at meetings, varying opinions about students' progress can create a charged atmosphere of heated and loud conversations, but he has never witnessed staff or supervisors "jump" on Complainant or harass her. After a thorough review of the record, we find that Complainant has not shown that the alleged actions were severe or pervasive enough to constitute a hostile work environment. Further, we find that there is no persuasive evidence that management harbored any discriminatory animus against Complainant because of her protected EEO bases. Thus, we find that the Agency properly found that Complainant did not prove that she was subjected to unlawful harassment. 3 CONCLUSION Accordingly, 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 for the reasons set forth in this decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations September 16, 2016 Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The Director is an African-American female who was 57 years old in August/September 2012. 3 Nevertheless, we note that S1b's comment that Complainant was too young to be so forgetful was inappropriate because it injected age into a conversation about work matters. The Agency should consider using formal EEO training as a tool to prevent recurrences of such inappropriate conduct. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141902 2 0120141902