0120111951
11-02-2012
Barbara Sonnier, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce, Agency.
Barbara Sonnier,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce,
Agency.
Appeal No. 0120111951
Hearing No. 570-2009-00832X
Agency No. 09-51-00896
DECISION
Complainant appeals to the Commission from the Agency's final decision dated January 25, 2011, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In her complaint, dated September 8, 2009, Complainant, a former Agency employee, alleged discrimination based on age (over 40) and in reprisal for prior EEO activity when:1
(1) She was subjected to a hostile work environment by managerial officers culminating in her removal from Federal service during her probationary period on May 22, 2009.
(2) The Office of Human Resources Management (OHRM) failed to promptly, fairly and adequately investigate her claims of hostile work environment. For example, none of the witnesses she provided to corroborate the treatment she received from managerial officers were ever contacted. Further, she did not receive a decision from OHRM on her hostile work environment allegations until after she had been removed from Federal service.
(3) The investigation of her prior complaint, Agency No. 09-51-00036, was biased. Further, she was not provided a "true" copy of the Report of Investigation, and the Report of Investigation contained e-mail correspondence pertaining to another EEO complaint.
On October 6, 2009, the Agency dismissed those allegations of harassment in claim (1) which occurred prior to April 9, 2009, due to untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also indicated that Complainant improperly attempted to raise the same claims that were previously raised in her prior complaint, Agency No. 09-51-00036.2 Furthermore, the Agency dismissed claims (2) and (3) for failure to state a claim and as alleging a dissatisfaction with the processing of a prior complaint, respectively, pursuant to 29 C.F.R. �� 1614.107(a)(1) and (8).
The Agency accepted portions of claim (1) that:
Since April 9, 2009, Complainant was subjected to a hostile work environment by her managerial officials culminating in her removal from Federal service during her probationary period on May 22, 2009.
After completion of the investigation of the accepted claim, above, Complainant requested a hearing, but an EEOC Administrative Judge (AJ) denied the request and remanded the case to the Agency for the issuance of its final decision.3 Accordingly, the Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency properly dismissed those allegations of harassment in claim (1) which occurred prior to April 9, 2009, as untimely. The record indicates that Complainant contacted an EEO Counselor regarding those matters on May 26, 2009, which was beyond the 45-day time limit set by the regulations. On appeal, Complainant does not present adequate justification to warrant an extension of the applicable time limit for contacting an EEO Counselor. Upon review, we agree with the Agency that it appears that Complainant merely attempted to raise those claims that she previously raised in her prior complaint which had already been decided by the Agency. Even if we consider these incidents as timely raised and/or as background information, we still find no discrimination as we find no discriminatory hostile work environment. With regard to claim (2), we find that the Agency properly dismissed claim (2) for failure to state a claim since it concerned the OHRM's prior investigation. And, we find that the Agency also properly dismissed claim (3) since it concerned Complainant's dissatisfaction with the processing of her prior complaint.
Turning to the accepted claims of harassment and Complainant's termination, we note that on August 26, 2010, the AJ properly dismissed Complainant's request for a hearing concerning the instant complaint. Specifically, the AJ indicated that on March 4, 2010, she issued an Order to Complainant to refrain from communicating about the instant case with Agency officials other than the Agency's designated representative. Therein, Complainant was also informed of the possibility of sanctions for failure to comply with the foregoing order. Thereafter, on May 12, 2010, the AJ issued another Order indicating that Complainant violated the March 4, 2010 Order when she subsequently sent her correspondence regarding the instant case to Agency's General Counsel, i.e., a non-designated representative of the Agency; she unreasonably characterized a typographical error in one of the Agency's interrogatories as a means of avoiding discovery; and, she announced her unavailability during these proceedings without prior request for an extension. Therein, Complainant was again explicitly advised that her failure to follow the Orders would result in sanction against her. On August 5, 2010, Complainant again sent her correspondence concerning the instant complaint in detail, including the Agency's purported improper processing of her complaint, to the Agency's Secretary. Based on the foregoing, we find that the AJ properly dismissed Complainant's request for a hearing and remanded the case to the Agency for the issuance of a final Agency decision pursuant to 29 C.F.R. � 1614.109(f)(3)(v).
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").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. Complainant claimed that she was subjected to harassment and was terminated from her employment on May 22, 2009. Complainant's supervisor stated that she made a decision to terminate Complainant during her probationary period due to: her disrespectable manner; her lack of available leave and failure to follow established procedures for requesting and obtaining leave; her negative and uncooperative attitude; and her behavior inconsistent with office and information technology security policies. The supervisor denied harassing Complainant at anytime as she alleged and also solicited input from Complainant's former supervisors.
Complainant claimed that she was denied training, assigned to pack and unpack boxes during a renovation and move, denied access to a computer, and scrutinized concerning her time sheets and leave. It appears that Complainant was attempting to raise the matters which she previously raised in her prior complaint, Agency No. 09-51-00036. There is no evidence that Complainant requested training to her supervisor and was denied that request since April 9, 2009, until she was terminated. Complainant's supervisor indicated that when Complainant informed her that she was having computer problems, she advised Complainant to contact the computer help desk to seek assistance and she even contacted the help desk herself on Complainant's behalf. Furthermore, with regard to work assignments and leave procedures, Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. With regard to her claim of harassment, we find that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. It appears, acknowledged by Complainant, that she did not agree with the manner which the supervisor and other managerial officials were conducting its business and had a number of disagreements with them. After a review of the record, we find that Complainant failed to show that the supervisor's stated reasons for termination were a mask for discriminatory harassment. Based on the foregoing, we find that Complainant has failed to show that her termination was motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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
11/2/12
__________________
Date
1 The record indicates that Complainant initially claimed that she was discriminated against based on disability (not specified), but she later withdrew that claim.
2 Complainant appealed the Agency's final decision concerning her prior EEO complaint, Agency No. 09-51-00036. This appeal is pending in our office under EEOC Appeal No. 0120111953.
3 The record indicates that the AJ consolidated Complainant's instant complaint and her prior complaint, Agency No. 09-51-00036, for the purpose of hearing.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111951
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111951