0120113241
09-07-2012
Rosalie B. Amado, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Indian Affairs) Agency.
Rosalie B. Amado,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs)
Agency.
Appeal No. 0120113241
Hearing No. 540-2009-00003X
Agency No. BIA-07-0552
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 10, 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. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's San Carlos Irrigation Project (SCIP) in Coolidge, Arizona. The SCIP has a Power Division and an Irrigation Division. Both divisions report to the Project Manager in the Administrative Office. Complainant began working for SCIP in August 2000 as the Power Division Secretary. In March 2007, Complainant received a cash award of $2,700 for her performance from October 1, 2005 to July 3, 2006.
From November 2006 to July 2007, Complainant worked as the Acting Secretary for the Project Manager while continuing to perform her Power Division Secretary duties. Complainant could not be compensated for the pay difference between her GS-5 position and her acting GS-6 position. The Project Manager drafted a memorandum stating that Complainant would be given a temporary promotion. Despite the memorandum, Complainant was unable to receive a temporary promotion. Instead, the Project Manager nominated Complainant to receive a monetary award in lieu of a temporary promotion. Complainant had already received an award during the fiscal year and therefore did not receive the award.
While working as the Acting Secretary for the Project Manager, Complainant noticed that several employees, including the secretary in the Irrigation Division, worked overtime. In July 2007, when Complainant returned to her Power Division Secretary position, she asked her manager (M1) if she could work overtime. S1 denied Complainant's request stating that there was not enough work to justify overtime. Additionally in July 2007, Complainant asked M1 if she could take a class at Central Arizona College. M1 informed Complainant that the Agency would not pay for the class unless it was related to her position. Complainant did not submit a written request for training or tuition reimbursement.
While performing her timekeeper duties, Complainant reported to M1 that an employee (CW2) was reporting time on his timesheets that he had not worked. M1 talked to CW2 about the issue. After their conversation, CW2 approached Complainant and said "If people (expletive) with me, I'll (expletive) with them."
On August 15, 2007, Complainant was charged 30 minutes of leave for leaving work early for a medical appointment. Complainant asked M1 why she was required to submit a leave slip when others did not have to submit leave slips. Agency policy required employees to submit a leave slip when leaving before the end of their duty hours. Complainant stated that she was aware of others not submitting leave slips because she encountered them while performing her timekeeper duties.
On August 21, 2007, Complainant was told that she was being sent to the Business Office to assist there temporarily because they were shorthanded. The Business Office was a subdivision of the Power Division. Complainant was subsequently sent emails about the detail assignment, including a memorandum stating she would be detailed to the Business Office for 30 days. Complainant did not receive the emails because she did not have email access in the Business Office at the time. In the Business Office, Complainant performed various collection duties. On January 23, 2008, Complainant received a memorandum about a 120-day detail assignment to a Teller position effective January 24, 2008 through May 22, 2008. Complainant received a Notice of Personnel Action on February 29, 2008 stating that she had been detailed into a Teller position effective September 24, 2007. On the same date, Complainant received a second Notice of Personnel Action extending the detail to May 21, 2008.
On December 19, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic) and sex (female) when:
1. On August 21, 2007, Complainant was detailed to the Business Office to perform Accounting Clerk duties, without official documentation;
2. On August 21, 2007, while Complainant was on approved leave, her supervisor (S1) told other employees she was having a tantrum and was absent without official leave (AWOL);
3. On August 15, 2007, Complainant was charged 30 minutes leave, for leaving work early for a medical appointment, while males are allowed to arrive to work late;
4. In July 2007, Complainant was denied tuition payment to attend Central Arizona College, but a male employee's college tuition was paid for by the San Carlos Irrigation Project;
5. Complainant was not allowed to work overtime;
6. Complainant was not given a promised monetary award for work performed during two prior details November 12, 2006 to July 9, 2007; and,
7. In June 2007, Complainant was threatened with offensive language by a management official for raising concerns about his illegal overtime pay and hazard pay.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 13, 2010, the AJ issued a decision without a hearing as to claims (2), (4) and (6). On May 13 and 14, 2010, the AJ held a hearing as to the remaining claims and issued a decision on August 31, 2010.
In her April 13, 2010 Order Granting Summary Judgment, the AJ determined that Complainant had presented no evidence that claim (2) occurred. As a result, the AJ granted judgment for the Agency as to this claim. Regarding claims (4) and (6), the AJ determined that Complainant had not established a prima facie case of discrimination on the alleged bases. More specifically, Complainant had not presented any evidence that similarly situated individuals outside of Complainant's protected classes were treated more favorably. In addition, Complainant had presented no other evidence raising an inference of discrimination. As a result, the AJ found that Complainant had not been discriminated against as to claims (4) and (6). The AJ concluded that claims (4) and (6) would be considered as background evidence for Complainant's harassment claim.
In her August 31, 2010 decision after a hearing, the AJ first noted that she had dismissed claim (7) at the close of the first day of the hearing. The AJ found that CW2's comment was in retaliation for Complainant's whistleblowing, a claim not covered by the Commission's statutes and regulations. As a result, the AJ dismissed claim (7).
As to the remaining claims, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), Complainant was detailed to the Business Office because it was understaffed at the time. Further, other people were not available for the detail assignment, and Complainant had insufficient work in her position as Power Division Secretary. As to Complainant's claim that the Agency discriminatorily detailed her without official documentation, the AJ determined that the Agency provided Complainant the required documentation. Testimony and record evidence revealed that Complainant was initially verbally detailed in August 2007 and she received an email in August 2007 stating that she would be detailed for 30 days. On or near January 23, 2008, Complainant received a memorandum from M1 about a 120-day detail to a position of teller effective January 24, 2008 through May 22, 2008. She received two official documents from the Human Resources Office on or near February 29, 2008, covering her detail until May 21, 2008. The documents may have been untimely; however, the AJ determined that there was no evidence of any discriminatory intent in the documentation of her detail assignments.
Regarding claim (3), M1 testified that he required leave slips whenever he was aware that an employee was taking leave therefore he required Complainant to submit a leave slip. While Complainant testified that she was aware of and observed employees who were not working and had not submitted a leave slip, Complainant submitted no evidence of specific employees who had done this. Further, M1 testified that in some instances employees had been called out to work during emergencies and may have had their hours adjusted.
As to claim (5), Complainant argued that she was not allowed to work overtime during two time periods: around the time she briefly returned to her Power Division Secretary position in 2007 and after she was detailed to the Business Office. Regarding the first time period, the AJ determined that that there was insufficient work for Complainant to work overtime when she requested it in approximately July 2007. As to the second time period, M1 testified that Complainant was denied overtime in November because she refused to open mail, which was the only work available on overtime. Since that time, Complainant has worked several overtime opportunities in the Business Office where they are short-staffed. The AJ found that Complainant did not present any evidence disputing these points. As a result, the AJ found that Complainant had not been discriminated against as to claims (1), (3), and (5).
Regarding Complainant's hostile work environment claim, the AJ determined that Complainant had presented no evidence that any of the alleged incidents were based on her protected classes. As a result, the AJ found that Complainant had not been subjected to a discriminatory hostile work environment as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that management initially stated her detail would be for one month and they had no intention of returning her to her official position of Power Division Secretary. Further, Complainant contends that she was not allowed to work overtime while the Irrigation Secretary was granted overtime and charged her time to the Power Division. As to claim (3), Complainant contends that she should have only had to take leave for 15 minutes, not 30. Complainant argues that five other employees were allowed to attend college courses, but her request was denied. Finally, Complainant claims that she submitted evidence that M1 made the statement about her having a tantrum which showed she was subjected to a hostile work environment. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
Claims (2), (4), and (6) - Partial Decision without a Hearing
Initially, the Commission must determine whether it was appropriate for the AJ to have issued a decision without a hearing as to claims (2), (4), and (6). 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing as to these claims and therefore the AJ's issuance of a decision without a hearing was appropriate. Regarding claim (2), Complainant submitted no evidence establishing that M1 made the statement at issue. A co-worker initially affirmed in her investigative affidavit that she did not hear the comment; rather, she heard about it secondhand from Complainant and that she did not believe that the incident was discriminatory. ROI, at 226. Later, in an unsworn statement, the witness stated that she wished to clarify her answer in the affidavit because she was under a lot of stress at the time of her original sworn statement. In this instance, she simply asserted that M1 made the comment, but did not clarify whether she believed M1's exhibited any discriminatory intent. The Commission finds that even assuming that the incident occurred as Complainant alleged, she has presented no evidence that M1 made this comment with any discriminatory animus. Thus, the Commission finds that the AJ's issuance of a decision without a hearing as to this claim was appropriate.
Regarding claims (4) and (6)1, the AJ determined that Complainant had not established a prima facie case of discrimination as she failed to show similarly situated individuals outside of her protected classes were treated more favorably. Additionally, Complainant failed to present any other evidence raising an inference of discrimination. Even assuming that Complainant had established a prima facie case of discrimination, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. As to claim (4), M1 affirmed that Complainant expressed to him an interest in taking a college class and he informed her that the class would have to be related to her position for the Agency to pay for it. ROI, at 199. There is no evidence in the record that Complainant made any formal request to take the class or had any request for tuition reimbursement actually denied.
In regard to claim (6), Complainant had already received a performance award during the fiscal year. A manager nominated her to receive a second award; however, the award was not processed after it was discovered that the awarded amount would exceed what an employee could receive in a fiscal year under Agency policies. ROI, at 201.
Complainant presented no evidence showing that the Agency's reasons were pretextual. As a result, the Commission finds that the AJ's decision without a hearing as to these claims was proper.
Remaining Claims - Post Hearing
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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
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 (1973). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). 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 Products, Inc., 530 U.S. 133. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Hotley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, the Commission finds that the AJ's finding of no discrimination is supported by substantial evidence. The Commission concurs with the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as set forth above. More specifically, as to claim (1), Complainant was detailed into the Business Office because that area was understaffed and Complainant had insufficient work in her Power Secretary position. Hr'g Tr., at 217. Complainant was initially informed of her detail assignment verbally, followed by official written documentation. Id. at 220-233. Further, M1 testified that the Agency had no one else available to detail into the Business Office. Id. at 217.
Regarding claim (3), M1 affirmed that Complainant approached him around 4:00 p.m. and told him she was leaving early for the day. ROI, at 197. Complainant's tour normally ended at 4:30, therefore she was charged 30 minutes of leave. M1 further testified that Agency policy required employees to take leave when they are out of the office on personal business and he does not allow employees to do so without submitting a leave slip. Hr'g Tr., at 236; ROI, at at 197. M1 acknowledged that in some situations, an employee may leave early after not taking a lunch break; however, it is always approved in advance. ROI, at 197-98.
As to claim (5), M1 testified that he denied Complainant's overtime request in November 2007, because Complainant refused to sort mail and there would have been nothing for her to do otherwise. Hr'g Tr., at 233-34. Since then, Complainant has often been allowed to work overtime in the Business Office as they are short-staffed. Id. at 235; ROI, at 200.
The Commission finds that the AJ's determination that Complainant failed to establish pretext is supported by substantial evidence in the record. The record and facts gleaned at the hearing fail to prove any evidence purporting to show the Agency's actions were pretext for discriminatory animus.
Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Commission finds that substantial evidence in the record supports the AJ's finding that all of the alleged incidents were not sufficiently severe or pervasive to rise to the level of a hostile work environment. Moreover, a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus as discussed above. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, the Commission discerns no basis to disturb the AJ's decision.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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 (Nov. 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
September 7, 2012
Date
1 The AJ accepted these issues as part of Complainant's hostile work environment claim and allowed testimony on these claims.
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0120113241
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013