0120100968
11-28-2012
Theresa R. Dowgwillo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Theresa R. Dowgwillo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120100968
Hearing No. 570-2008-00621X
Agency No. HS-07-TSA-0019251
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Program Specialist (PS), H-Band, at the Agency's Federal Air Marshall Service (FAMS) in Herndon, Virginia. Complainant sought EEO counseling and subsequently filed a formal complaint.
Complainant alleges that she was subjected to discrimination on the basis of reprisal for prior protected EEO activity when:
1. On May 20, 2007, Complainant was reprimanded for signing into a work location prematurely.
2. On May 31, 2007, Complainant was reassigned from her PS position in the Mission Operations Center (MOC) to the Flight Tracking Office (FTO).
3. On May 29, 2007, Complainant was denied a request to work at an adequately lit workplace on a regular basis.
4. On September 17, 2007, Complainant was issued a Conduct Incident Report due to insubordination.
At the conclusion of the investigation, Complainant received a copy of the investigative report. Additionally, the Agency informed Complainant of her right to request a hearing before an AJ, or alternatively, to receive a final decision from the Agency. Complainant requested a hearing before an AJ.
On November 10, 2010, an AJ issued a decision without a hearing finding that there was no genuine issue of material fact in dispute, and concluded that Complainant had not been discriminated against as alleged. Specifically, the AJ found the Agency presented legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
On November 30, 2010, the Agency, fully implementing the AJ's decision, issued a decision finding no discrimination. Complainant appealed from that decision.
On appeal, Complainant's argued that the AJ improperly weighed the evidence in deciding to grant the Agency's Motion for Summary Judgment. Complainant stated that the AJ erred in holding that Complainant made no showing that the adverse employment action occurred within such time as to infer a retaliatory motive by anyone. Complainant asserted that there was a genuine issue of material fact as to whether the reasons articulated by the Agency for the adverse action were in fact legitimate and non-retaliatory. Complainant claimed that the AJ's denial of Complainant's Motion for Sanctions, after finding that the Agency's Counsel was aware that Complainant was represented by counsel, failed to copy counsel on a notice of a rescheduled deposition, and did not provide Complainant herself with timely notice of the rescheduled deposition, was an abuse of discretion.
In response to Complainant's appeal, the Agency initially argued that Complainant's appeal was untimely filed. The Agency stated that the Agency's final decision was delivered to Complainant's attorney on December 3, 2009, and to Complainant on December 5, 2009. The Agency asserted that Complainant's appeal was not filed, however, until January 7, 2009, which is the postmark date stamped on Complainant's Notice of Appeal. The Agency articulated that Complainant was required to file her appeal within 30 days of the date on which her attorney received the Agency's final decision, December 3, 2009. The Agency said that Complainant was required to file her appeal no later than January 4, 2010.
The Agency also argued that the record was sufficiently developed and summary disposition was appropriate. The Agency stated that the AJ did not improperly make credibility determinations nor improperly weigh the evidence. The Agency asserted that the AJ properly found that Complainant failed to show a temporal nexus between her protected activity and the alleged reprisal. The Agency stated that Complainant failed to rebut the Agency's legitimate, nondiscriminatory reasons for addressing her poor performance and conduct. The Agency claimed that the AJ properly denied Complainant's motion for sanctions.
ANALYSIS AND FINDINGS
The Commission finds that Complainant timely filed her appeal. By facsimile dated January 2, 2010, Complainant's attorney, who received the Agency decision on December 3, 2009, filed an appeal with this Commission from the Agency's November 30, 2010 decision Therefore, Complainant filed her appeal within the 30-day time limit set forth in 29 C.F.R. � 1614.402.
The Commission finds that Complainant has failed to show on appeal why the AJ's decision to issue summary judgment was incorrect. Moreover, the Commission finds that Complainant failed to show that the AJ abused his discretion in declining Complainant's Motion for Sanctions.
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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Upon review, we find the issuance of summary judgment was appropriate as there are no genuine issues of material fact. Regarding claim 1, the Assistant Special Agent In Charge (ATSAC) stated that the MOC needed to provide uninterrupted assistance and responses to the field agents because the field agents were constantly calling the MOC for whatever they needed. The ATSAC explained that, when the evening shift begins at 2:00 P.M, he or his team leaders provided a daily briefing to the oncoming shift. The ATSAC stated that, when he or his team leaders completed their briefing, the employees would then go to work on the floor.
The ATSAC asserted his belief that, when employees are on the floor, they cannot afford a break in phone calls or a break in customer service for the agents in the field. The ATSAC stated that he followed the same procedure he has followed in the past and present in which he instructed the controllers to sign in to an empty work station instead of pushing somebody off their work station. The ATSAC explained that, if they push someone off their work station, it would take 5 to 15 minutes for people to sign in due to the number of databases they would have to sign into. The ATSAC contended that, by waiting for an early shift person to sign out, the delay would result in the interruption of continuity of service, which they did not need or could not afford.
The ATSAC stated that his instructions to the shift personnel were for them to sign into an empty work station. The ATSAC said that this would have resulted in the evening shift personnel signing in before the morning shift personnel signed off. The ATSAC explained that this kept a constant flow of communication and service without a break in customer service for the field agents that were calling the MOC. The ATSAC asserted that he instructed the controllers to sign into an empty work station and not to wait for one to become empty.
The ATSAC maintained that Complainant did not follow his directions that day. The ATSAC contended that the Complainant did what she wanted to do. ATSAC stated that Complainant signed into a filled work station instead of taking an empty one. The ATSAC asserted that this violated a direct order. The ATSAC explained that Complainant signed into the filled work station, which resulted in pushing the occupant off the work station instead of taking an empty work station. The ATSAC maintained that, if the person that was occupying the work station had indicated to Complainant that she could have the work station while the person was signed on, then that person also violated policy.
The ATSAC stated that he became aware of Complainant's infraction when he came out of the briefing and observed Complainant standing at work station 19 that was occupied at the time. The ATSAC observed that the controller, who was leaving, was still signed on.
The ATSAC stated that he got Complainant, and her boss, the Supervisor (Supervisor), and they went into his office, where they spoke to her violating the direct order. The ATSAC explained that they were verbally counseling her, not reprimanding her. The ATSAC said that he wrote up what happened and gave it to the Supervisor. The ATSAC asserted that they did not issue a written reprimand.
The ATSAC maintained that they have a history with Complainant not following orders. As an example, the ATSAC related the most recent incident between Complainant and the Watch Officer. The ATSAC explained that, when the Watch Officers were in training and situations arose that needed a Watch Officer's attention, he instructed the controllers to take the situation to the persons he had named to handle the situations. The ATSAC contended that Complainant did not follow instructions to go to the designated personnel. The ATSAC stated that Complainant did not want to go through the Watch Officer or anyone named on the list. The ATSAC said that he talked to Complainant about it and her response was that, "Everybody else was doing it." The ATSAC claimed that he was not aware of anyone else not following his instructions.
The ATSAC stated that he had counseled one other employee within the last 2 years about not following his instructions.
With respect to claim 2, the Assistant Special Agent In Charge (ASAC) stated that he initiated the reassignment in consultation with the FTO Manager (Manager). The ASAC explained that there had been repeated reports from FAMS and other supervisors in MOC regarding Complainant's attitude and her interaction with the Watch Officers that supervised the controllers on the floor. The ASAC stated that the interaction between Complainant and the Watch Officers had become very negative. The ASAC stated that there have been ongoing issues with Complainant's ability to interact with other MOC personnel.
The ASAC stated that to say Complainant was reassigned was misleading since her core duties were as a flight tracking controller and to work in the FTO. The ASAC asserted his belief that that, at the time Complainant and everybody else in the MOC needed a break. The ASAC explained that Complainant was going to do her MOC duties in the FTO instead of on the MOC floor. The ASAC maintained that Complainant's duties, shift hours, leave schedule and pay were not affected by the change. The ASAC reiterated that Complainant's core of duties was in the FTO, which supplemented the MOC on a daily basis. The ASAC acknowledged that he told Complainant that she needed to think about her attitude and not to worry about what everybody else was doing.
The ASAC stated that what started this was Complainant's involvement with a FAMS issue that somebody else was working on, and she began to provide unsolicited advice on how to do this and that. The ASAC explained that was not for Complainant to do, nor anyone else in the MOC to do. The ASAC asserted that he told Complainant that she needed to deal with her own issues and let the other people deal with their own issues. The ASAC explained that he was concerned with Complainant's interpersonal communication between her and the Watch Officers because the Watch Officers were ultimately the ones making the decisions and the ones held accountable if a wrong decision was made. The ASAC explained that Complainant's response to him was that she could not stand being told by people who knew less than her.
The ASAC stated that he was going to make the reassignment out of MOC for a one week period; however, Complainant requested 30 days.
The ASAC stated that Complainant did not like it, but she accepted it. The ASAC offered that Complainant did a good job out there, and it was never about her performance, but about her interpersonal skills and attitude. The ASAC stated that, after the 30 days, Complainant went back to the MOC. The ASAC stated that, during her 30 days in the FTO, Complainant was asked to help in the MOC, and she did.
As to claim 3, the Supervisor stated that Complainant mentioned this issue when she was asked why she pushed the employee from the occupied position. The Supervisor said that Complainant had a preference for working at a particular position because it was better lighted than other positions and the controller notes were easier to read from the location.
The Supervisor stated that Complaint had indicated that she had complained to several managers about this fact, and that she needed to work in a specific position. The Supervisor asserted that she had no knowledge or a record about Complainant's request. The Supervisor said that the ATSAC had no knowledge of anything previously being brought up to any of his ATSACs. The Supervisor claimed that she and the ATSAC looked at each other and stated that they were unaware of this.
The Supervisor explained that Complainant was told that, if it was an issue for her, she could be accommodated in other ways such as printing out the controller notes for her and letting her have them at her position where she could read them easily. The Supervisor maintained that Complainant was informed that a number of things could be done for her, but, if she was asking specifically for a position to be made available to her at all times in the MOC, she needed a doctor's statement. The Supervisor stated that she considered Complainant's claim a request for reasonable accommodation because she was asking for a permanent position. The Supervisor said that, if it was just her preference to sit at that location, they could not accommodate her. The Supervisor asserted that Complainant was told that she could occupy that position if it was available, but they were not going to make that position her permanent position. The Supervisor claimed that Complainant's response was "Oh we are going to play that game are we." The Supervisor stated Complainant has not provided her with a doctor's statement to support her request.
Concerning claim 4, the Deputy Special Agent In Charge (DSAC) stated that he met with the Manager and Complainant to issue a letter of counseling that arose from the recommendation from the Office of Professional Conduct Responsibility upon their review of the Conduct Incident Report (CIR) that was submitted. The DSAC stated that the ASAC was not present.
The DSAC explained that the purpose of a CIR was to place someone on notice about their conduct. The DSAC stated that he notified the Office of Professional Conduct Responsibility, and that CIR served as a notification to them that there needed to be some action taken. The DSAC said that they made recommendations to them on whether to take action or not. The DSAC asserted that, once he got their response to the CIR, he made a recommendation to the Special Agent in Charge (SAC) on what course of action to take. The DSAC claimed that the SAC actually signs the letter. The DSAC articulated that, in this case, it was a letter of counseling, which was not a permanent record on Complainant's personnel file.
The DSAC stated that the CIR was initiated when he received information from the ASAC and talking with the Manager about several incidents involving Complainant. The DSAC said that he gathered additional statements from the ATSAC and a couple of the other Marshals, who serve as Watch Officers concerning Complainant's behavior. The DSAC asserted that he put that together on a form and sent it to the Office of Professional Conduct Responsibility in headquarters. The DSAC claimed that, in consultation with the Special Agent in Charge, a course of action was decided. The DSAC stated that they decided to issue a letter of counseling, which he wrote up and presented to Complainant. The DSAC said that the Manager was present when he presented the letter.
The DSAC stated that Complainant had written a lengthy response to the CIR. The DSAC recalled that Complainant started, by saying that she had not been counseled about her behavior in the past and that she had not been talked to by ASAC and the Manager regarding Complainant's behavior and attitude toward the Watch Officers and supervisors. The ASAC acknowledged that he cut her oral explanation short because he had two supervisors, who had told him that she was counseled regarding her behavior. The DSAC stated that he told Complainant more than once that she was quite a capable employee and she could be a better employee if she would focus on her job.
The DSAC stated that what stood out to him in the CIR was the incident that involved Complainant contradicting one of the Watch Officers. The DSAC asserted that the Watch Officer gave directions to a new employee regarding one of the FAMS's schedules. The DSAC claimed that Complainant apparently did not agree with the Watch Officer's directions to the new employee, she proceeded to give the new employee new directions. The DSAC mentioned that, instead of the new employee carrying out the Watch Officer's direction, the new employee followed Complainant's direction. The DSAC articulated that this put it over the top. The DSAC stated that there have been a number of incidents where Complainant would disagree with the Watch Officers in a sarcastic manner in front of other employees. The DSAC maintained that they tolerated this for a while, however, the accumulation of these things, plus she was telling other people what to do; they felt they had to take action. The DSAC stated that up until then the counseling from the supervisors was ineffective. The DSAC said that this behavior led to the CIR and a letter of counseling, which was not going to permanently impact her record. The DSAC explained that normally, the supervisor would hold the letter for two years; however, he told her that he would hold it for one year, and if s did not have a similar problem next year, he would destroy the letter and they would be back to a clean slate.
The DSAC stated that, when they met, Complainant was not aware that she was getting a letter of counseling, which he still has. The DSAC asserted that no disciplinary action was involved.
After a careful review of the record and contentions on appeal, the Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Additionally, the Commission finds that Complainant has failed to show by a preponderance of the evidence that she was subjected to discrimination on the basis of reprisal.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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
November 28, 2012
__________________
Date
1 The EEOC Administrative Judge's (AJ) Order Entering Judgment and Decision erroneously showed HS-06-TSA-001424 as the Agency Number.
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0120100968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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