0120152713
12-05-2017
Mafalda H.,1 Complainant, v. Timothy O. Horne, Acting Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mafalda H.,1
Complainant,
v.
Timothy O. Horne,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120152713
Hearing No. 410-2013-00361X
Agency No. 12-R04-PBS-LBH-15
DECISION
On July 24, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 25, 2015, 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's decision that Complainant did not demonstrate that she was subjected to discrimination and or harassment.
ISSUE PRESENTED
The issue presented in this case is whether Complainant established that the Equal Employment Opportunity Commission's Administrative Judge's decision was not supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Specialist, GS-13 at the Agency's Public Building Service facility in Atlanta, Georgia. On September 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (Caucasian), sex (female), disability (Post Traumatic Stress Disorder, Generalized Anxiety Disorder, Attention Deficit Disorder, Agoraphobia, Depression, Guillian Barre, and Nervous Breakdown), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 27, 2012, her request for a reasonable accommodation (telework) was denied:
2. On August 1, 2012, she was reassigned from a Co-op Program Manager to a position in the Events/Conferences by her supervisor;
3. All of her duties were reassigned to young, black females;
4. All National Programs were taken away from her work assignment;
5. She was moved from her office to another floor and branch; and
6. Her supervisor made a derogatory comment to a COOP about her falling down when she has a disability which causes her to fall down.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on April 27, 2015, and issued a decision on June 10, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to harassment and discrimination as alleged. Specifically, the Agency found that Complainant was not denied a reasonable accommodation on July 27, 2012. She asked about telework and was told that her request would have to wait until the Branch Chief came back from vacation. When he returned, it was decided that as Complainant was not doing well in her position, she would be reassigned in response to her reasonable accommodation request.
With respect to claim 2, management indicated that Complainant was reassigned to a position in the Events/Conferences Division because she was not progressing in the Program Specialist position where she was initially assigned. Regarding claims 3, 4, and 5, Complainant alleged that her duties were reassigned to black females, the National Programs were taken away from her, and she was moved from her office to another floor and branch; the Agency indicated that Complainant was reassigned to a new position because she was not progressing in the Program Specialist position and as such the duties that Complainant had been initially performing were distributed among three other employees, her National Programs duties were taken away and she was moved to another floor and branch as a result of the reassignment.
Further, in claim 6, Complainant indicated that her supervisor made a derogatory comment about her falling down, the supervisor indicated that she witnessed Complainant falling down and asked if she was alright. She later spoke to the Office Director about the incident. There was no evidence that a derogatory comment was made.
The AJ found that Complainant failed to establish a hostile work environment, or harassment based on her protected status. Additionally, the AJ found that the Agency set forth legitimate non-discriminatory reasons for the conduct on which Complainant's allegation of discrimination were based; and Complainant did not present any persuasive evidence of pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that her supervisor created a hostile work environment by yelling and raising her voice to her subordinates. Complainant also reiterates her claims made during her hearing. Including, her claim that after her psychiatrist issued a notice that she should not be subjected to workplace abuse, Complainant requested two days of telework but was reassigned instead. Complainant argues that the AJ erred in not recognizing the effects of the hostile work environment, incorrectly held that she had not been subjected to reprisal, and erred in finding that she had not been subjected to disability discrimination when her reasonable accommodation request was not granted.
Further, Complainant argues that the AJ erred in disqualifying her witnesses. Complainant indicates that the grounds for their disqualification was erroneous; as well as the fact that they were disqualified at the hearing and not at a Prehearing Conference. Complainant requests that she be awarded compensatory damages in the amount of $300,000.00 and reasonable attorney's fees for the discrimination and the damage to her professional reputation.
In response, the Agency requests that Complainant's appeal be denied and that the AJ decision be affirmed. The Agency contends that it demonstrated legitimate, nondiscriminatory reasons for its actions, Complainant did not show that the Agency's reasons were pretext for discrimination, and Complainant failed to demonstrate that the AJ's factual findings were not supported by substantial evidence.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that there is substantial evidence in the record in support the AJ's findings and determination that Complainant did not establish discrimination by the Agency as alleged nor did she establish the incidents at issue were severe or pervasive enough to establish a hostile work environment. Further, with respect to Complainant's contentions on appeal we find that other than her conclusory statements she did not provide evidence that the AJ erred. AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ abused his discretion in these matters.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_12/5/17_________________
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.
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