0120102505
05-24-2012
Mae R. Horsey, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Mae R. Horsey,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120102505
Hearing No. 570-2008-00816X
Agency No. 0811029
DECISION
On May 25, 2010, Complainant filed an appeal from the Agency's May 6, 2010 final order 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resource Specialist, GS-201-14, in the Office of the Assistant Secretary for Administration and Management, Office of Executive Resources and Personnel Security (OERPS), located in Washington, DC. On November 27, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), color (black), age (52), and in reprisal for prior protected EEO activity when: (1) she was given a performance rating of "minimally successful;" (2) she was given a Decision to Suspend on November 7, 2007; (3) she was denied a union representative of her choice on December 27, 2007 and January 15, 2008; (4) a management official encouraged her to withdraw her EEO complaint; and (5) she was directed to amend her timesheet to reflect her suspension for two eight-hour days.
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). Complainant requested a hearing in a timely manner. Over Complainant's objections, on April 2, 2010, the AJ assigned to the case granted the Agency's January 9, 2009, motion for a decision without a hearing. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
UNDISPUTED FACTS
The Director of OERPS (S1) (Caucasian, female, over 40, prior EEO activity unknown) was Complainant's direct supervisor. OERPS is divided into two distinct functions: Executive Resources and Personnel Security. The Executive Resources side of OERPS was staffed by five Human Resources Specialists. The Human Resources (HR) staff initially included Complainant, two Caucasian males (C1 and C2), two African-American females (C3 and C5), and a Caucasian female (C4). In March, 2007, C2 transferred to the Occupational Safety and Health Administration (OSHA). On July 23, 2007, a new employee (C6) (Caucasian, female) was hired to replace C2. The HR staff performs the human resources functions for all senior level executives and political appointees at the Agency. These functions include recruitment, hiring, position classification, payroll, overseeing the Department's Senior Executive Staff (SES) allocation, and policy development relating to regulations for SES employees. The HR staff provides service to approximately 369 senior level management officials.
On January 19, 2007, S1 met with the OERPS staff to reiterate requirements for office coverage and to discuss the requirements for earning credit hours. S1 re-informed the staff that everyone is assigned a time for office coverage and is expected to work until 5:00 p.m. S1 also informed the staff that they were to verbally inform her of their intent to work more than eight hours per day or to accrue credit hours before the end of the core hours. S1 spoke with each staff member and advised them that failure to comply with these instructions could result in disciplinary action. On or around January 22, 2007, Complainant was also individually informed that credit hours were not permitted without prior authorization and that future occurrences could result in disciplinary action.
On March 12, 2007, Complainant received an "Official Reprimand" for unacceptable conduct, which included inappropriate behavior towards her supervisor and for failure to follow instructions for accruing credit hours without prior authorization. Complainant continued to earn credit hours without discussing the matter with S1 first and engaged in other inappropriate conduct. On August 7, 2007, Complainant was notified by S1 that there were expectations in her Fiscal Year (FY) 2007 performance plan that she was in danger of failing. Complainant was notified that: (1) she had not developed a Standard Operating Procedure (SOP)/desk-guide for completing the biennial process; (2) she had not developed training or briefing materials on updated Executive Core Qualifications; (3) she had not authored any documents or articles that could be posted on the Human Resource Center or Labor Net websites; and (4) she had not developed a briefing on the Candidate Development Program.
On September 19, 2007, Complainant received a "Notice of Proposed 5-Day Suspension" from S1 for inappropriate behavior towards a supervisor and for failure to follow supervisory instruction when she earned credit hours without first discussing it with management. On November 7, 2007, Complainant was issued a "Decision on Proposed Suspension" from her second-line supervisor (S2) (male, Caucasian, over 40) informing her that she would be suspended for two days for her inappropriate behavior towards S1 and her failure to follow instructions. Complainant was informed that her suspension would take place on January 14-15, 2008.
On November 27, 2007, Complainant received an overall "minimally satisfactory" rating on her FY 2007 Performance Appraisal for the period ending on September 30, 2007. Complainant received a three-page narrative from S1 that outlined her performance deficiencies. On January 18, 2008, Complainant was instructed to change her time entries for January 14-15, 2008 to reflect full eight-hour workdays for her suspension after Complainant submitted her timesheet to reflect only five hours or "core hours" on each of those two suspension days. Complainant changed her timesheet on January 23, 2008 to reflect 16 hours of suspension time.
On December 27, 2007 and January 15, 2008, S2 informed Complainant that as a non-union member, she did not have entitlement to union representation in any employment matter. S2 explained that the Agency would not recognize the Vice President of Local 12 (U1) as Complainant's representative for anything connected to the performance appraisal process, noting that he believed that this would represent a conflict of interest or the appearance of a conflict of interest.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
With respect to Claim 1, the AJ notes that S1 identified numerous instances where Complainant failed to meet performance requirements as the basis for the minimally satisfactory rating imposed. The AJ also noted that Complainant did not dispute S1's statements about her performance but pointed instead to her accomplishments. In addition, with respect to Complainant's propensity to make errors, she claimed that she had never been counseled about the issue. The AJ concluded that while Complainant generally disagreed with the rating, there was no dispute of material fact that S1 had legitimate, non-discriminatory reasons for imposing the minimally satisfactory rating. Moreover, the AJ concluded that Complainant failed to establish that S1 was motivated by Complainant's race, sex or color in evaluating her performance. The AJ concluded that Complainant's bare assertion of a possible discriminatory motive, without more, was not enough to create a genuine issue for hearing.
With respect to Claim 2, the AJ concluded that S1 provided legitimate, non-discriminatory reasons for Complainant's suspension. Specifically, the record shows that Complainant refused to follow S1's directive that she remain at the office until five o'clock on a rotating basis. S1 gave six examples of days in which Complainant failed to comply with this directive. The AJ noted that Complainant failed to address S1's explanation for the suspension. S1 also provided several examples of Complainant's disrespectful conduct towards her which included an instance where Complainant refused to meet with her about her workload. The AJ concluded that there is no dispute of material fact that S1 issued the proposed suspension for insubordination and disrespectful behavior. The AJ found no evidence in the record to support the finding that Complainant's suspension was related to her membership in any protected class.
With respect to Claim 3, the AJ concluded that the undisputed record shows that S2 believed Complainant was not a bargaining unit member and consequently, not entitled to representation by the union. Moreover, the AJ concluded that Complainant failed to produce any evidence to show that S2's actions were motivated by discriminatory animus.
With respect to Claim 4, the AJ notes that S1 became aware of Complainant's EEO activity in March 2007, when Complainant sent an e-mail communication advising S1, S2 and another manager that she would be filing an EEO complaint. Complainant initiated EEO contact in September 2007 and met with an EEO counselor in October, 2007. Thus, Complainant's protected EEO activity occurred close in time to the minimally successful performance rating and the suspension. The AJ concluded that notwithstanding this evidence, there is no dispute of material fact that the Agency had legitimate, non-discriminatory reasons for its actions, which Complainant failed to demonstrate were a pretext for discrimination.
The AJ concludes that the evidence in the record shows that S2 initiated discussions with Complainant in an attempt to settle her complaint. The AJ also notes that Complainant produced no evidence to support her claim that S2 used "strong arm tactics" or that S2's actions were retaliatory. Accordingly, the AJ concludes that Complainant's bare statement that retaliation occurred without more is insufficient to create a genuine dispute of fact.
With respect to Claim 5, the AJ concludes that Complainant failed to show that the requirement to amend her time card to reflect eight hours for each day of her suspension was a pretext or otherwise was motivated by discriminatory animus. The AJ further notes that the undisputed record shows that management's actions were in accordance with the United States Office of Personnel Management and the Department of Labor rules and regulations.
The AJ also notes that Complainant failed to present any evidence to support her assertion that her age was a factor in the employment actions. The AJ concluded that Complainant's bare assertion of a discriminatory motive, without more, was insufficient to create a genuine dispute of material fact, warranting a hearing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,1 including those not specifically addressed herein, we AFFIRM the Agency's final order.
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
May 24, 2012
__________________
Date
1 Contrary to Complainant's assertions in her appeal, C3's affidavit fails to set forth sufficient evidence of racial animus on the part of any management official. C3 provides vague assertions of disparate treatment to support her opinion that Complainant was treated in a disparate manner on the basis of her race.
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01-2010-2505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013