0120112027
08-20-2012
Eva S. Scott, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Eva S. Scott,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120112027
Agency No. CRC-10-11-067
DECISION
On February 20, 2011, Complainant filed an appeal from the Agency's February 4, 2011, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Opportunity Specialist (EEO Specialist), GS-13, in the Agency's Office of the Assistant Secretary for Administration and Management (OASAM)/EEO Office located in Washington, D.C. From April 2008, through January 2010, Complainant's first-level supervisor (S1) was the OASAM EEO Manager. In mid-June 2009, S1 was temporarily detailed to the Office of Employee and Labor Management Relations (OELMR); however, during her detail she retained her position as the OASAM EEO Manager. During the relevant time, Complainant's second-level supervisor (S2) was the Deputy Assistant Secretary for Operations.
Complainant filed an EEO complaint dated alleging that the Agency discriminated against her on the bases of race (African-American), color (brown), age (over 40) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was suspended for two days for failing to follow supervisory instructions.
2. Complainant was rated "Effective" on her fiscal 2009 performance appraisal.
3. Complainant was subjected to a hostile work environment based on her supervisor's interactions from June 2009 to the present, including the requirement that Complainant submit daily reports of her activities.
4. Management failed to notify Complainant, or select her for EEO manager positions advertised as CTAP-lO-HRC-OASAM-016 and ICTAP-lO-HRC-OASAM-054.
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 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.
On appeal, Complainant states that no other Agency employee has been suspended for failure to providing weekly/daily status reports. Complainant states that S1 was detailed to a new office and her role with the OASAM EEO office became "Oversight." Complainant states that in this new role, S1 did not request status reports, weekly, daily, or otherwise.
With regard to her performance appraisal, Complainant disputes S1's statement that during her midyear evaluation on May 7, 2009, S1 discussed with Complainant her failure to complete assigned tasks on time and to provide her with written weekly activity reports. Rather, Complainant states that on May 7, 2009, during her midyear evaluation, S1 told her that she had done everything required and that she was pleased with Complainant's work. Complainant disputes S1's statement that S1 had to repeatedly make revisions to Complainant's work products and that Complainant consistently failed to meet deadlines.
With regard to her claim of non-selection, Complainant disputes management's decision to laterally reassign an individual non-competitively into the GS-14 OASAM Equal Employment Advisor's position. Complainant claims she met the minimum qualification requirements for the positions at issue. She states that she exceeded the 52 weeks of specialized experience equivalent to the next lower grade level in the Federal Service as stated in the vacancy announcement.
Complainant also disputes the Agency's statement in its final decision stating that Complainant alleged that S1 asked her repeatedly when she was planning to retire and that S1 wanted to bring in a younger EEO Manager. Rather, Complainant states that her actual statement was "I believe [S1] was trying to pressure me to retire so that she could bring in a younger employee as the EEO Manager."
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, 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").
At the outset, we note that Complainant's affidavit, provided in response to the present complaint, states that Complainant claimed that S1 asked her repeatedly when she was planning to retire and that S1 wanted to bring in a younger EEO Manager. In her appeal, Complainant disputed that she made the statement that "[S1] asked you repeatedly when you were planning to retire and that she wanted to bring in a younger EEO Manager." Rather, on appeal Complainant clarified that her actual statement was "I believe [S1] was trying to pressure me to retire so that she could bring in a younger employee as the EEO Manager."
With regard to issue (1), the record reveals that the Agency issued Complainant a two-day suspension on September 17, 2009, for failure to follow instructions. Specifically, the Agency noted that Complainant failed to provide S1 with requested daily activity reports since June 16, 2009. The Notice of Suspension stated that Complainant's failure to follow supervisory instructions demonstrated a lack of responsibility and commitment to duties. The decision also stated that Complainant's failure to provide the requested reports impeded tracking the work of the office, providing appropriate guidance and direction, and keeping upper management timely apprised of critical issues in the office. The Notice of Suspension also noted since receiving the notice of proposed suspension, Complainant had continued to disregard her supervisor's instruction to complete and provide her with weekly and/or daily reports.
The record confirmed that during the summer of 2008, S1 initially instructed Complainant to submit weekly status reports so that she could assess Complainant's work. S1 stated that she had to continually remind Complainant to provide the weekly status reports for eleven months after she gave Complainant the instruction; however, Complainant refused to comply. S1 explained that on May 7, 2009, at the end of Complainant's mid-year review, she directed Complainant to submit daily status reports, listing the work she performed and the offices and personnel involved. S1 noted that she reminded Complainant about the daily reports via electronic mail on May 20, 2009. The Agency noted that from June 16, 2009, through August 25, 2009, Complainant failed to provide the status reports, resulting in the Suspension being issued on August 25, 2009.
Complainant stated that that when S1 first requested weekly activity reports in August 2008, she complained with this request. Complainant stated she may have forgotten a time or two to submit the weekly activity reports; however, she stated that S1 did not have to continually remind her. Complainant stated that S1 did not direct her to provide daily activity reports until May 20, 2009. Complainant stated that on June 29, 2009, S1 informed her of S1's detail to OELMR and told Complainant that her role with the EEO Office would be that of "Oversight." Complainant explained that S1 said that oversight meant that they would meet periodically so that Complainant could update S1 on EEO activity. Complainant stated that from this discussion she believed that she and S1 would meet periodically. Complainant noted that status reports were not mentioned again until S1 issued her the Notice of Proposed Suspension.
While the record confirmed that S1 requested weekly activity reports beginning in the summer of 2008, we note that the suspension at issue concerned Complainant's failure to submit daily activity reports that S1 requested in May 2009. While S1 stated that she first directed Complainant to submit daily status reports during Complainant's mid-year review on May 7, 2009, Complainant stated that S1 did not request daily reports until May 20, 2009.
The record contains a May 20, 2009 electronic mail message in which S1 stated that she is uncertain how productive Complainant is in a 40 plus hour work week and noting that she has seen limited work product from Complainant for the past five months. In the electronic mail message S1 stated that in order for her to better assess Complainant's work load, she wanted Complainant to provide her with a status report of her daily activities. S1 clarified that Complainant was to send her an electronic mail message listing the items she worked on for the day to include the offices and personnel Complainant engaged with, if any.
Complainant noted that on June 16 through 18, 2009, S1 knew that she was participating in EEO training and she did not require a status report from Complainant for that week. Complainant also stated that from June 22 through 26, 2009, S1 knew that Complainant was on vacation. Complainant stated that on June 29, 2009, S1 told her that she was going on detail and Complainant argued that once S1 went on detail she was no longer required to provide the daily status reports.
In her affidavit, S1 acknowledged that Complainant was not required to submit status reports for days that she was not in the office; however, S1 stated that she failed to submit any reports for the days she was at work for the period identified in the suspension. Moreover, while S1 went on detail to the OELMR in June 2009, the record revealed that she retained her position as the OASAM EEO Manager throughout her detail. In her affidavit, S1 stated that she told Complainant that while she was on detail she expected Complainant to maintain her duties and assignments under her existing standards. S1 stated that she also told Complainant that she would be required to continue her tasks in the manner previously identified and her work duties and requirements were not changing.
In the present case, we find the Agency articulated legitimate, non-discriminatory reasons for issuing Complainant the two-day suspension for her failure to submit the required daily activity reports to her supervisor. Upon review, we find Complainant failed to show that the Agency's actions with regard to requesting the daily activity reports or in issuing the suspension as a result of Complainant's failure to provide the daily activity reports were based on her race, color, age, or in reprisal for prior protected EEO activity.
With regard to Complainant's 2009 performance appraisal, S1 stated that Complainant was rated "Effective" because her work performance for the rating period was barely effective. S1 stated that Complainant's work products required repeated revisions and she stated Complainant consistently failed to meet deadlines. S1 explained it was a challenge to get Complainant to conduct training, as required by her performance standards. S1 stated she had to repeatedly remind Complainant that she failed to provide summaries of active EEO cases or analysis of such. S1 stated that Complainant did not have a good grasp of the EEO process/requirements to provide expert technical advice or counsel to clients and tended to refer clients to other resources such as the Civil Rights Center and Labor Management Relations. S1 stated she advised Complainant of these deficiencies at her mid-year review and when S1 received work that was deficient. S1 explained that she attempted to advise Complainant about how particular tasks could be done differently or more efficiently and Complainant would state that "this is how I do it" and refuse to take any suggestions.
Complainant noted that after the previous EEO manager retired, on January 3, 2008, she performed all of the duties of the EEO manager and was given a temporary GS-14 in recognition of the fact. Complainant stated that she had previously received the highest rating for the seven appraisals she received prior to S1's arrival.
While the record confirms that Complainant did serve a detail at the GS-14 level from January 3, 2008, through April 2008, we note that the detail was prior to the time of the 2009 rating period. Moreover, we note that Complainant's prior appraisals also occurred prior to the relevant time frame. Upon review, we find Complainant failed to show that the Agency's actions in rating her "Effective" on her appraisal were based on discriminatory animus.
With regard to issue (3), Complainant alleged that the Agency subjected her to a hostile work environment when S1 tried to establish through disciplinary actions that Complainant had become a problem employee, required her to submit daily status reports, scheduled five meetings with Complainant in the summer of 2009 which S1 did not attend, and changed the lock on the office door without informing Complainant first.
In the present case, we find Complainant failed to show that she was subjected to harassment or discrimination. With regard to the requirement that she submit daily status reports detailing the work she completed each day, the record confirms that the Agency had concerns about the amount of work Complainant was producing and requested the daily status reports as a way to monitor Complainant's work.
The record confirms that S1 scheduled and rescheduled several meetings with Complainant and then did not attend many of these meetings. S1 stated she did not remember specific dates of the meetings Complainant referred to; however, she explained that during this time period she did have to reschedule meetings because of the demands of managing two offices while she was on detail.
With regard to the changing of the locks, S1 stated on December 10, 2009, she did have the lock to the EEO Manager's office changed because she had been promoted to the Director of OELMR position permanently and the EEO Manager position would have to be filled. S1 explained that in order to ensure that the files were secure and that the next Director would be responsible for who had access to that office, the locks were changed and all keys provided to S1 to pass on to whoever the new Director would be. S1 stated that she informed Complainant of the change in locks and told Complainant to get what files she needed out before the locks were to be changed and that she could contact S1 if she needed anything out of the Manager's office. Upon review, we find Complainant failed to show that she was subjected to a harassment based on her race, color, age, or in reprisal for her protected EEO activity.
With regard to issue (4), Complainant claims that the Agency failed to notify her, or select her for an Equal Employment Manager position, GS-15, advertised under vacancy announcement CTAP-lO-HRC-OASAM-016 and an Equal Employment Advisor, GS-14, under vacancy announcement ICTAP-lO-HRC-OASAM-054. In his affidavit, S2 stated it was not customary for management to inform someone in Complainant's position when vacancies such as the two at issue were posted. S2 stated that vacancy announcements are customarily posted internally and publically on USAJobs and DOORS. S2 stated that in instances such as this, when management considers a non-competitive reassignment action, they must clear CTAP (Career Transition Agency Program) or ICTAP (Interagency Career Transition Agency Program) prior to any reassignment actions being processed. S2 noted that vacancy announcement number CTAP-10-HRC-OASAM-016 and ICTAP-10-HRC-OASAM-054 were posted to notify all applicants eligible to apply for these positions through USAJobs and DOORS.
The Human Resources (HR) Specialist explained that when a manager wishes to make a lateral reassignment or a lateral transfer to place an individual in a position, they must first open an announcement for five business days to "clear CTAP or ICTAP." The HR Specialist noted that federal employees who have been displaced due to Reduction in Force (RIF) procedures receive priority consideration for vacant positions under CTAP or ICTAP. She stated that if there are no qualified, displaced candidates who apply to the announcement, management may then noncompetitively reassign or transfer someone into the position. The HR Specialist stated that CTAP is cleared if management would like to reassign someone from within the Agency and ICTAP is cleared if management would like to transfer someone from another Federal agency. The HR Specialist stated it is not customary for management to notify its staff of these types of announcements. Rather, she noted that these announcements are not intended to be competitive opportunities open to employees who have not received notice of a RIF. She stated that if they were to apply to the announcement, employees who did not submit a formal RIF notice would be found ineligible.
The record shows that CTAP-10-HRC-OASAM-016 was posted December 4-10, 2009, and ICTAP-10-HRC-OASAM-054 was posted January 12-19, 2010. The vacancy announcement for the CTAP-10-HRC-OASAM-016 noted that agency CTAP Eligibles in the local commuting
area may appeal. The vacancy announcement for ICTAP-10-HRC-OASAM-054 stated that ICTAP Eligibles and VEOA Eligibles in the Local Commuting Area may apply.
The record reveals that both of the non-selections at issue were non-competitive reassignments.
The HR Specialist stated that once the announcements for the two positions at issue closed, she reviewed applications to ensure that there were no applicants who were eligible under CTAP and ICTAP regulations, and then informed management that they could make the reassignment and transfer for the positions at issue. Selectee 1, the Deputy Director of Human Resources Center (HRC), was chosen for CTAP-10-HRC-OASAM-016 and Selectee 2, external to the Agency, was chosen for ICTAP-10-HRC-OASAM-054.
The record reveals that Complainant was outside the area of consideration because the announcements were only open to those Federal employees who had received a RIF notice. The Agency noted that Complainant did not submit documentation to support this eligibility requirement. Moreover, the Agency noted that the GS-15 position was also not open to Complainant because she had not served a year as a GS-14.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for either of the two positions at issue. Complainant failed to show that the Agency's actions were a pretext for discrimination or retaliation.
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
August 20, 2012
__________________
Date
2
01-2011-2027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112027
9
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