0120122813
09-19-2014
Complainant v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120122813
Agency No. 10-R9-PBS-SBJ-18
DECISION
Complainant timely filed an appeal from the Agency's May 11, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not establish that she was subjected to unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Lead Contracting Officer in the Agency's Public Buildings Services (PBS), Real Estate Broker Branch in San Francisco, California.1
On August 19, 2010, the Branch Chief (Chief) issued Complainant a letter of reprimand. The letter stated that on August 6, 2010, the Chief sent Complainant an urgent e-mail that asked her to focus on two issues when she came to work on August 9, 2010: the Census Elk Grove overpayment project and the Social Security Administration Van Nuys letter. The Chief's letter further stated that on August 9, 2010, Complainant told him that she had not even looked at his e-mail that day and would be unable to accomplish anything directed in the e-mail until the next day. The Chief also stated that prior to his August 6, 2010, e-mail, Complainant's Team Leader (S1) had asked her to prepare a draft of the Van Nuys letter by August 5, 2010, but Complainant missed that deadline, which precipitated the Chief's August 6, 2010, e-mail.
The Chief's letter further stated that on August 10, 2010, Complainant failed to follow-up with him to ensure completion of the letter prior her departure for an 11-day absence. The Chief also stated that Complainant's conduct violated his and S1's specific directions, the concept of Global Project Management under which Complainant operated as the GS-13 Lease Contracting Officer, and the ideal of personal accountability and project ownership. The Chief further stated that he took into consideration a counseling memorandum issued to Complainant on March 6, 2009, that directed her to read S1's e-mails as the "first order of business"
each day, fully answer all questions posed in the e-mail, and take such actions as directed as quickly as practicable. The Chief's letter concluded that Complainant failed to take responsibility for resolving the Elk Grove issue, and did not complete the first draft of the Van Nuys letter until five days after the deadline.
On November 22, 2010, the Director issued Complainant a proposed suspension for three days. The letter stated that the proposed suspension was issued because Complainant walked out of a meeting with the Chief and her Team Leader (S1) on October 7, 2010, and failed to follow the Chief's instructions with regard to the United States Department of Agriculture (USDA) project in Lihue, Hawaii. The letter stated that on September 9, 2010, the Chief instructed Complainant to gather the parties involved in the project for a project kick-off, but that Complainant had not followed these instructions as of October 7, 2010. In a letter dated January 3, 2011, the Regional Commissioner informed Complainant that he found that the charges set forth in the proposal letter were substantiated and warranted the penalty proposed therein.
The Complaint and Investigation
On September 27, 2010, Complainant contacted an EEO Counselor. On December 29, 2010, Complainant filed a formal EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (born in 1950), when, on August 24, 2010, the Agency issued Complainant an official reprimand. Complainant further alleged that the Agency subjected her to discrimination on the bases of race, sex, age, and in reprisal for previous EEO activity when it suspended her effective January 10, 11, and 12, 2011.
In an investigative statement, Complainant stated that she believed that the letter of reprimand was based on her previous EEO activity because the Chief told her that she did not complete her assignments because she was out of the office attending the Blacks in Government (BIG) Conference. Complainant further stated that the Census Elk Grove overpayment was a special project that is done every ten years, and that she was responsible for putting the contract together. Complainant stated that the overpayment was the result of a co-worker failing to go into the database to reduce the rent, but that she (Complainant) had fulfilled her responsibility and was not responsible for the overpayment. Complainant stated that Global Project Management, or cradle-to-grave handling of projects, did not apply to this situation and is not part of the performance plan for Lease Contracting Officers.
Regarding the Van Nuys letter, Complainant stated that S1 asked her to prepare a draft letter for the Northern Branch. She stated that when S1 asked her if she had prepared the letter on August 6, 2010, she told him that she had not had the opportunity to work on it because she and S1 had been in training. Complainant also stated that she did not remember why she did not see or open the Chief's August 6, 2010, e-mail on the day it was sent. However, Complainant also stated that she probably did not open and respond to the Chief's e-mail as the "first order of business" because his e-mails were not the only ones she received, and she was working on 15 projects. Complainant stated that the Chief counseled her about reading his e-mails as the first order of business on March 6, 2009, and she tried to obey his directive to the best of her ability.
Complainant stated that she prepared a letter for the Chief to review on August 10, 2010, but the letter was not prepared within S1's time-frame because of training. Complainant further stated that it was not her responsibility to tell the Chief that she was taking annual leave to attend the BIG Conference from August 14 through 21, 2010, as it was S1's responsibility to inform the Chief that she (Complainant) would be on leave. Complainant stated that no one else on the team had ever received a letter of reprimand for not doing what management said she had failed to do.
Regarding the suspension, Complainant stated that on October 7, 2010, she walked out of a meeting in which the Chief asked her questions about a document for an Internal Revenue Service (IRS) project. She stated that the IRS project was difficult, but the Chief kept asking her if she had completed it. Complainant stated that after the Chief continued to pressure her to answer the same questions, she became upset, said she was going to resign, and left the meeting. She stated that she then went back to her desk and cried. Complainant stated that she did not return to the meeting although the Chief said he was expecting her to return.
Complainant further stated that the Lihue Project was assigned to her in late 2009, and the Chief told her to make it a priority because the lease would expire in 2010, that and the goal was to have the United States Department of Agriculture (USDA) in a new space by the expiration of its lease. Complainant stated that when she received the Lihue Project, she wanted to cancel it and have the Space Management Group obtain revised requirements from the Agency, but the Chief did not want her to do that. She stated that priorities changed and work shifted, which resulted in her inability to set up the kick-off meeting for the project within the Chief's timeframe for doing so.
The Chief (Caucasian male born in 1955) stated that he asked Complainant to work on the Census Elk Grove and Social Security Administration Van Nuys projects because he needed her to get these projects resolved. The Chief stated that, although a coworker had been working on calculations for the Elk Grove project, Complainant was responsible for moving action with the lessor forward. The Chief further stated that Complainant was directed to take care of the overpayment because she had failed to put in a reduction-of-rent action, but Complainant failed to take care of the matter.
The Chief further stated that he received the Van Nuys letter on August 10, 2010, but Complainant failed to check with him to see if he approved of the letter before she went on leave. He stated that Complainant did not do anything to close out the letter before she left, although he had told everyone that they needed to sit down with managers to discuss issues pending while they are absent. The Chief stated that the cumulative effect of Complainant's actions from August 2 through 10, 2010, warranted a reprimand. The Chief stated that he did not mention Complainant's attendance at BIG when he gave her the letter of reprimand, and that Complainant's claim that he did was "fiction."
Regarding the suspension, the Chief stated that he prepared the initial draft of Complainant's proposed suspension letter. The Chief stated that during a meeting with Complainant about the USDA Lihue and IRS projects, he tried to question Complainant about those matters, but she did not answer questions to his satisfaction and walked out of the meeting. The Chief stated that Complainant previously had been counseled after she walked out of a meeting with him on February 26, 2009.
The Director (Egyptian2 male born in 1958) stated that the Chief prepared Complainant's suspension letter, but that he signed and concurred with it. He stated that for the previous two and one-half years, the Chief told him about problems he had with Complainant regarding her decision-making and performance. The Director stated that Complainant was aware of the IRS project. He further stated that Complainant authorized the new landlord for the IRS project to do work although no money had been allocated for the work. The Director also stated that he received e-mails from clients complaining about Complainant, including reports that she badly managed a project and overpaid a landlord.
Final Agency Decision
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant had not proven that the Agency subjected her to discrimination as alleged because she did not show that the Agency's legitimate, non-discriminatory explanations for its actions were pretext for unlawful discrimination. Neither party raises arguments on 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 Chap. 9, � VI.A. (Nov. 9, 1999) (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").
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
For instance, to establish a prima facie case of disparate treatment on the bases of race or sex, Complainant must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Secur. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009).
In a reprisal claim, in accordance with the burdens set forth in McDonnell Douglas, Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Reprimand
Complainant previously filed EEO complaints in 1970 and 1980 against a management official who is not involved in this case. Complainant maintains that her 1970 and 1980 EEO activity is not relevant to her current reprisal claims. Instead, Complainant contends that the Chief retaliated against her because she attended the BIG Conference in 2010. However, Complainant has not shown how her mere attendance at the BIG Conference involved opposition to a practice made unlawful by one of the employment discrimination statutes, or participation in the EEO process. See EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-3. As such, Complainant's attendance at the conference does not constitute protected EEO activity. Moreover, there is no evidence that the management officials responsible for Complainant's reprimand were aware of her 1970 and 1980 EEO complaints or that there is any connection between that previous EEO activity and the reprimand, which Complainant acknowledges. Thus, we find that Complainant failed to establish a prima facie case of reprisal for this matter.
Further, we find that the Agency provided legitimate, non-discriminatory explanations for issuing Complainant the reprimand. Specifically, the Chief stated that Complainant was reprimanded because she failed to follow-up with him to ensure completion of the letter assignment before she went on leave for an extended period. The Chief stated that Complainant's conduct violated management's specific directions, the concept of Global Project Management under which Complainant operated, and the ideal of personal accountability and project ownership. The Chief further stated that Complainant was directed to take care of the overpayment because she had failed to put in a reduction of rent action, but Complainant failed to take care of the matter.
Complainant acknowledged that on March 6, 2009, the Chief counseled her about reading his e-mails as the first order of business, and that she did not read or open the Chief's August 6, 2010, e-mail on the day it was sent. Complainant also acknowledged that she did not prepare the Van Nuys letter by the deadline set forth by S1. We find that Complainant failed to prove that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. Consequently, we find that the Agency properly found that Complainant did not prove that she was subjected to unlawful discrimination when she was issued a reprimand.
Suspension
Regarding Complainant's suspension, we assume, arguendo, that Complainant established a prima facie case of unlawful discrimination for this matter. Nevertheless, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, Agency management stated that Complainant was suspended because she walked out of a meeting with the Chief on October 7, 2010, and failed to follow the Chief's instructions with regard to the USDA project in Lihue. Management also stated that Complainant had previously been counseled after she walked out of a meeting with the Chief on February 26, 2009.
Complainant acknowledged that she walked out of the meeting with the Chief during a work discussion, and she did not return to the meeting although the Chief said he was expecting her to return. Complainant also acknowledged that she failed to set up the kick-off meeting for the USDA project within the Chief's timeframe for doing so. We find that Complainant did not show that the Agency's non-discriminatory explanations are pretext for unlawful discrimination. Consequently, we find that the Agency properly found that Complainant did not establish that the Agency subjected her to unlawful discrimination when it suspended her.
CONCLUSION
Accordingly, based on a thorough review of the record, we AFFIRM the Agency's final decision for the reasons set forth in this decision.
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
September 19, 2014
Date
1 Complainant worked for the Agency for approximately 34 years and retired on February 2, 2011.
2 The Director identified his race as "Egyptian."
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0120122813
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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