[Redacted], Irene S., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 22, 2023Appeal No. 2022002199 (E.E.O.C. Mar. 22, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022002199 Hearing Nos. 550-2017-00042X; 550-2018-00027X Agency Nos. 2015-26386-FAA-06; 2016-27062-FAA-06 DECISION 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 March 31, 2022, final order concerning her consolidated equal employment opportunity (EEO) complaints 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst at the Agency’s Northwest Mountain Regional Office in Renton, Washington. On November 4, 2015, Complainant filed a formal EEO complaint. On October 27, 2016, Complainant filed a subsequent formal EEO complaint. 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. 2022002199 2 At the conclusion of the first 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 requested a hearing. On May 2, 2017, Complainant filed a motion to consolidate the two discrimination complaints. On February 7, 2019, the AJ assigned to the case granted Complainant’s motion to consolidate. Across the consolidated complaint, Complainant alleged the following: 1. The Agency discriminated against her on the bases of race (Black/Hispanic), color (brown), sex (female), age (45), disability (narcolepsy), and in reprisal for prior EEO activity, when it issued her a Memorandum of Expectations (MOE) on May 22, 2015, which placed the following expectations on Complainant: a. Must submit leave requests no later than the last Wednesday of the Pay Period, and definitely prior to taking the leave; b. Leave without pay (LWOP) requests not related to Family Medical Leave Act (FMLA) (and her medical condition) must be requested in writing, 3-days in advance; c. Time and Attendance and Labor and Distribution Report (LDR) must be updated daily; d. Meal breaks not permitted at beginning or end of shift and must be within first 6- hours of shift; e. May not use Code 19 (“no lunch”) without prior approval; f. Must adhere to core hour requirement of 3 days per week of working between the hours of 9:30-2:30 pm; g. Must report arrival and departure time to manager, daily, and within 10 minutes of arrival time; h. Must notify manager within 1-hour of latest expected arrival time (by 10:30 a.m.) if she will be late or sick; i. May work up to 2-days of telework each week and must be pre-approved for specific days of telework before working them; j. Request to amend time worked on May 22, 2015 (to amend her timesheet to “no lunch” code) was denied; and k. The Agency denied her reasonable accommodation with the above expectations. 2. The Agency subjected Complainant to a hostile work environment on the basis of disability (narcolepsy) when: a. Her supervisor made changes to her time and attendance (on October 19, 2016); b. Her supervisor insisted on meeting with her (on October 24, 2016) and made changes to her telework schedule; c. She received a Letter of Reprimand (LOR) (on October 26, 2016); d. She received an updated performance plan document; e. Her supervisor restricted her access to the time and attendance system; f. Her supervisor made changes to her time and attendance; g. She was coded as AWOL by her supervisor; 2022002199 3 h. Her reasonable accommodation request was rescinded; and i. The restrictions from entering her own time and attendance continued and she was being coded with AWOL more. Over Complainant's objections, the AJ granted the Agency’s April 15, 2019, motion for a decision without a hearing and issued a decision without a hearing finding no discrimination on July 23, 2019. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action2 pursuant to 29 C.F.R. § 1614.109(i). Relevant Agency employees involved in the claims include Complainant’s supervisor from November 18, 2012 through April 30, 2016 (Supervisor-1A), and Complainant’s supervisor beginning May 2, 2016 (Supervisor-1B). Claims 1.a - 1.i reference expectations outlined in a Memorandum of Expectations Supervisor- 1A issued Complainant on May 22, 2015. On appeal, Complainant states she is no longer contesting claims 1.b, 1.c, 1.d, and 1.f. As such, these claims are no longer discussed except as may be necessary for background purposes. The MOE states that its purpose was to communicate the expectations regarding work schedule, attendance, leave, and telework requirements. Supervisor-1A explained that the MOE was issued due to Complainant continuously submitting incorrect time and attendance records, failing to meet the expected core days requirement in accordance with the maxi-flex schedule, and failing to submit leave requests correctly or in a timely manner. The record establishes that Complainant had reasonable accommodations, in some form, since 2012. Complainant does not argue that there were specific reductions in her reasonable accommodations; rather, she argues that imposing the above expectations “erodes” her reasonable accommodations. Regarding claim 1.j, Complainant requested to amend her time and attendance record to use Code 19 that represents that she did not take a lunch, a process that allows the balancing of a timesheet. Complainant reported that she was in a meeting with Supervisor-1A on May 22, 2015, that began shortly after 12:00 pm and ended at 3:35 pm. Complainant reported that Supervisor-1A stated that she had some questions about a previous work assignment, requested information, and assigned Complainant a new project with a due date of June 2, 2015. Complainant stated she was unable to take her meal break since it was within two hours of the end of her shift. In a memorandum dated July 28, 2015, Supervisor-1A denied the amendment. 2 The Agency’s subsequent issue of a final order on March 31, 2022, also found no discrimination. This does not alter the AJ’s decision finding no discrimination which became the Agency’s decision. 2022002199 4 Supervisor-1A explained that she did not authorize Complainant to bypass her required meal break, that she did not direct Complainant to miss her meal break, and that Complainant was not assigned any tasks that could not wait until after her meal break. Regarding claims 2.a - 2.i., Complainant did not participate in the investigation or respond to interrogatories. Regarding claims 2.a and 2.f, Supervisor-1B explained that the changes she made to Complainant’s time and attendance were necessary to avoid Complainant’s time sheet being recorded as “straight 80”3. Complainant ignored Supervisor-1B’s previous instruction to change her departure time from 6:00 pm to 5:00 pm, consistent with Complainant’s then assigned Alternative Work Schedule (AWS). Regarding claim 2.b, Supervisor-1B explained that she requested an in-person meeting to discuss various topics such as Complainant’s work assignments, monthly and yearly long report format, and the verification of Complainant’s telework activity. Supervisor-1B noted that she had provided Complainant with up to two days telework per week as part of Complainant’s reasonable accommodation request effective September 4, 2016, and switched Complainant to a new AWS, the gliding schedule. Supervisor-1B explained that Complainant’s prior use of the maxi-flex schedule was not effective as Complainant was having difficulties reporting to the office during core business hours, which was required at least three-days per week. Regarding claim 2.c, Supervisor-1B explained that Complainant received the LOR for failing to follow instructions. The LOR noted that Complainant continued to utilize a maxi-flex schedule and refused to follow the gliding schedule which Supervisor-1B had instructed her to follow. The LOR also noted that Complainant failed to follow Supervisor-1B’s instructions regarding changes Complainant had to make to her timesheet. Regarding claim 2.d, the record shows that Complainant’s performance plan did not change. Specifically, Complainant’s mid-year performance review and the final end of year performance review for Fiscal Year 2016 contain the same standards for each critical element. Regarding claim 2.e and the time and attendance portion of claim 2.i, Supervisor-1B explained that Complainant received numerous emails instructing her to complete her time and attendance reports in a timely manner with accurate submission of time worked and leave taken. Supervisor-1B noted that Complainant did not comply and actively resisted following these instructions. Based on the foregoing, Supervisor-1B restricted Complainant’s ability to access the time and attendance system. 3 “Straight 80” refers to an automatic process that occurs when a manager is unable to approve an employee’s submitted time and attendance records due to discrepancies such as unapproved leave or the work hours not adding up to a valid amount. In such a situation, the employee’s timesheet is coded as 80 hours of regular work. Then the employee must submit amendments to report their actual time worked and any leave taken. The system only allows two straight 80 submissions before refusing to process an employee’s pay. 2022002199 5 Regarding claims 2.g, Supervisor-1B explained that she charged Complainant as AWOL because Complainant worked on an EEO matter without requesting prior approval. Supervisor-1B noted that Complainant was entitled to a reasonable amount of time to work on EEO matters but that such activity required prior management approval. Supervisor-1B noted that the management approval prerequisite had been explained to Complainant numerous times before the events of this claim. Regarding claim 2.h, Supervisor-1B explained that Complainant’s reasonable accommodation was not rescinded. Supervisor-1B noted that Complainant’s request to telework on a specific date was denied because of a determination that she was needed in the office on that date. The reasonable accommodation in effect at the time of this claim provided Complainant with intermittent FMLA, the gliding schedule, a varied arrival time each day between 6:00 am and 9:30 am, the option to earn credit hours, and up to two telework days per week. The record establishes that Complainant’s telework days were flexible rather than scheduled. Agency policy required Complainant to request her upcoming telework days in advance and that management had to approve the telework days in advance. Regarding the AWOL portion of claim 2.i, Complainant did not provide any information to clarify the claim to allow for an evaluation. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative 2022002199 6 judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant 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. See St. Mary's Honor Center 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 complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022002199 7 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions at issue as described earlier in this decision. Supervisor-1A explained that these expectations were required due to Complainant continuously submitting incorrect time and attendance records, failing to meet the expected core days requirement in accordance with the maxi-flex schedule, and failing to submit leave requests correctly or in a timely manner. Regarding claims 2.a and 2.f, Supervisor-1B explained that the changes to Complainant’s time and attendance were necessary to prevent an automatic administrative procedure that would occur due to Complainant’s errors in timekeeping. Regarding claim 2.g, Supervisor-1B charged Complainant with AWOL due to Complainant spending work time on non-work activities without prior approval. To the extent that Complainant is alleging a denial of official time to work on EEO matters, we find no violation here. After a review of the record, we find Complainant failed to show that the Agency’s articulated reasons for the discrete employment actions were a mere pretext for discrimination. Rather, the record establishes Complainant’s multiple violations of Agency policy including: accurately accounting for all her work hours, absences, and leave; satisfying the core hour requirement; and taking a lunch break if she worked six hours or more. Complainant’s supervisors and the timekeeper worked with Complainant numerous times to educate her on timekeeping policy and to fix errors in already submitted records. Complainant failed to follow such guidance and direct instructions from her supervisors. Complainant’s description of the reported conduct as a denial or rescindment of her reasonable accommodation is a mischaracterization. The Agency provided Complainant with reasonable accommodations since 2012. The reported conduct occurred because Complainant failed to comply with Agency policy that still applied to Complainant despite her reasonable accommodations. There is no persuasive evidence that she was ever denied a reasonable accommodation. Any denial of a telework day for Complainant was because she did not, as had been the practice, give prior notice and obtain prior approval for her requested telework day. Regarding Complainant’s claim of harassment, we find that Complainant failed to prove the conduct complained of was based on her membership in a statutorily protected class. We further note the record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. 2022002199 8 CONCLUSION Accordingly, the Agency’s final action finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022002199 9 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 22, 2023 Date Copy with citationCopy as parenthetical citation