[Redacted], Roxanne H., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 20-2000-0287 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanne H.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal No. 20-2000-0287 Hearing No. 450-2018-00336X Agency No. BEP-17-0730-F 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 August 27, 2019 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. 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 decision. BACKGROUND Complainant worked as an Equal Employment Opportunity Specialist, GS-0260-09, in the Agency’s Office of Equal Opportunity and Diversity Management of the Bureau of Engraving and Printing in Fort Worth, Texas. On December 17, 2017, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of her sex (female) and age (54) when:2 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. 2 The incidents have been rearranged in chronological order for clarity. 2020000287 2 1. On December 19, 2016, the Deputy Chief, her immediate supervisor (S1), accused Complainant of being absent without leave (AWOL), even though Complainant had provided medical documentation for her leave; 2. On unspecified dates, S1 denied Complainant leave in connection with her mother’s surgery and harassed Complainant when she took other leave to care for her mother; 3. On unspecified dates, S1 denied Complainant leave for her own medical appointments; 4. In April 2017, S1 denied Complainant a career-ladder promotion to GS-11; 5. On an unspecified date, S1 harassed Complainant regarding an EEO complaint she was processing because of incorrect information that her management had provided her; 6. Effective May 30, 2017, S1 suspended Complainant for 14 days; and 7. Upon her return from her suspension on June 13, 2017, Complainant learned that S1 had placed her suspension on his calendar, which humiliated her in front of her coworkers. Following an investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ remanded the complaint to the Agency, and 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. Complainant filed the instant appeal, but did not submit a brief or statement in support of her appeal. 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. (Aug. 5, 2015) (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”). 2020000287 3 Disparate Treatment 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, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 has articulated legitimate and nondiscriminatory reasons for each of his actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). S1 explained that Complainant is located at the Agency’s Fort Worth office while he is located in Washington, D.C., which makes it very important that Complainant communicate through email or by phone when she is going to be out of work. With respect to incident (1), S1 affirmed that Complainant had technically been AWOL during the week leading up to December 19, 2016, that she had not returned any of his phone calls or emails, and that he did not charge her with AWOL but merely informed her that her actions constituted AWOL so that she would understand the importance of following Agency policies and procedures. IR 131. Concerning incidents (2) and (3), S1 asserted that Complainant had been absent from December 12 through December 19, 2016 but did request annual leave when she returned on December 20, 2016, and that her leave request for that period was approved. IR 125, 127. With regard to incident (4), S1 averred that although Complainant had been scheduled for a career- ladder promotion to GS-11 in April 2017, her conduct was not at an acceptable level as demonstrated by the fact that she had received a proposed suspension in March 2017, and was under investigation for misuse of a government credit card and providing false statements. IR 129- 30. S1 noted that the promotion was not automatic and could be approved or denied based on the performance and conduct of the employee. Regarding incident (5), S1 affirmed that Complainant repeatedly failed to update an EEO complaint in the tracking system despite numerous emails and telephone calls instructing her to do so. IR 133-34. As to incident (6), S1 stated that Complainant was charged with failure to follow supervisory instructions by working outside her tour or duty without prior approval on numerous occasions which led to over 200 hours of unauthorized overages. In addition, Complainant failed to update the tracking system as instructed. IR 128-44. As a result, S1 issued Complainant a 14- day suspension. As to incident (7), S1 denied that he put on his personal office calendar that Complainant had been suspended and that no one else had seen his calendar. IR 123. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2020000287 4 Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Here Complainant not only failed to provide her own affidavit, she presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradicted or undercut S1’s explanations for the various incidents at issue, or which would cause us to question S1’s veracity as a witness. Based on the evidentiary record now before us, we agree with the Agency that Complainant has not presented evidence sufficient to demonstrate that S1 relied upon unlawful considerations of her age or sex in connection with any of those incidents. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To the extent that Complainant is alleging that s/he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision. 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). 2020000287 5 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. 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. 2020000287 6 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 2, 2021 Date