0220150006
03-24-2017
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Corrina M.,1
Grievant,
v.
Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 0220150006
DECISION
On April 28, 2015, Grievant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's March 31, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Grievant worked as an Auditor at the Agency's Benefits Administration and Payment Department in Washington, D.C.
The record indicated that Grievant registered and reported for Cardiopulmonary Resuscitation/Automated External Defibrillator (CPR/AED) training on August 27, 2014. The Instructor was a contractor and was informed that transcription service would be used for Grievant during the training. During the training, issues arose between Grievant and the Instructor who questioned the use of the transcription service and felt that Grievant was falling behind and slowing down the class. During the training and the exchange, Grievant raised her voice and yelled at the speaker that he should, "stop talking." She also challenged the presentation and told the class that they "should never listen to doctors because a doctor once told [her] mother the wrong thing." The Instructor felt that her story was misleading the other participants. During a break, the Instructor and Human Resources had to get involved to calm Grievant down at which point Grievant became more angry and yelled. Grievant was permitted to finish the training and received her certification.
Then on September 3, 2014, Grievant was attending a Government Accounting, Financial Reporting and Budgeting review class. Grievant asked the training technician (Technician) at 8:25 a.m. about setting up the bridge line for the transcription service. The Technician was in the process of getting a microphone for the instructor and could not set up the bridge line at that moment. Grievant became agitated and began yelling at the Technician. A short time later, Grievant confronted the Human Resources Specialist about the situation and yelled at her over the bridge line.
These events were raised with the Associate Division Manager (Manager). She found that Grievant's conduct constituted "conduct unbecoming a Federal Employee." As a result, the Manager issued a Written Reprimand on September 29, 2014.
On October 10, 2014, Grievant filed a grievance alleging that the Agency discriminated against her on the bases of sex (female), disability (deaf), age (40), and retaliation (for requesting reasonable accommodation) when on September 29, 2014, Grievant was issued a Written Reprimand. The grievance was denied on December 4, 2014.
Grievant's Step 2 Grievance was filed on December 18, 2014. She asserted that she is a dedicated, loyal, and hardworking employee. She was attempting to obtain reasonable accommodation as a deaf employee. She asserted that the Agency is seen as a problem and they ignore her needs and she is not seen as an equal. She claimed that with respect to the CPR/AED training, she felt that the Instructor was not sensitive to her need for an accommodation and she did not recall saying "Shut up" or being disruptive. As for the Technician, Grievant believed that she was not going to be able to fully participate with the training and reacted based on her past experiences with the Agency. As such, she believed that there was no valid basis for the reprimand.
The Step 2 Grievance Response was issued on March 31, 2015. The Acting Director reviewed the grievance and the documents provided by Grievant in support her claim of discrimination and retaliation. The Acting Director noted that several of the documents provided by Grievant did not relate to the events pointed to in the written reprimand nor controverted the events listed in the reprimand. The Acting Director found that Grievant's conduct was inappropriate on both August 27, 2014, and September 3, 2014. She noted that Grievant was being reprimanded for her raising her voice and her outbursts during the CPR/AED training and with the Technician prior to the September training. She understood Grievant's frustrations with the situations but that the manner in which Grievant conducted herself was unbecoming of a Federal Employee. The Acting Director noted that Grievant was provided with the translation services for the September training. Based on the totality of the record, the Acting Director denied the grievance.
This appeal followed. Grievant argued that the Instructor was hostile towards her and admitted to it. She also asserted that the Instructor was interfering with her preferred methods of accommodation. As for the September training, Grievant argued that she was worried was going to have issues ensuring that she would have a captioner connected for the training or that she would lose the captioner. She then turned to the issue of the reprimand and asserted that she was not given any warning for the disciplinary action.
ANALYSIS AND FINDINGS
The Commission has jurisdiction over appeals from grievance decisions in limited circumstances. EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may appeal to the Commission from a final decision of the agency, an arbitrator, or the Federal Labor Relations Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised, but requires the Grievant to proceed on the discrimination claims under either the grievance process or the EEO process, but not both. In these circumstances, the Commission will only review that portion of the decision which pertains to the Grievant's employment discrimination claim, as it does not have jurisdiction over any alleged violations of a collective bargaining agreement. See 29 C.F.R. � 1614.301(a). Here, Grievant alleged, at least in part, that the Agency violated the terms of the collective bargaining agreement when she was subjected to unlawful discrimination. Accordingly, the Commission properly has jurisdiction over Grievant's appeal.
We note that the only issue raised by Grievant in the grievance was a claim of disparate treatment when she was issued the written reprimand.2 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Grievant to prevail, he or she must first 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Grievant 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. St. Mary's Honor Ctr. 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 Grievant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its action, namely Grievant's conduct with the Instructor, Technician, and Manager. We turn to Grievant to establish that the Agency's reasons constituted pretext for discrimination based on race, age, disability, and/or retaliation. We find that Grievant was clearly frustrated with the situations and anxious about ensuring that she was provided with effective accommodation. However, it does not excuse Grievant's unprofessional behavior towards these individuals. As such, we determine that Grievant has not shown that the written reprimand constituted unlawful discrimination and/or retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Step 2 Grievance Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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).
GRIEVANT'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 Grievant'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
March 24, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
2 We note that the Grievant alleged on appeal that she was denied a reasonable accommodation. This is the first time Grievant has raised this claim and was not addressed by the Step 2 Grievance decision. As such, we determine that it is not proper to raise this claim before the Commission for the first time.
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