Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

May 7, 2015

01-2013-2392-0500 (E.E.O.C. May. 7, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120132392

Hearing No. 531-2010-00200X

Agency Nos. HS-08-FEMA-00355 & HS-08-FEMA-00482

DECISION
On June 5, 2013, Complainant filed an appeal from the Agency’s May 7, 2013 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Duplicate Mail Operator at the Agency’s National Processing
Services Center (NPSC) in Hyattsville, Maryland. On July 14, 2008, she filed Complaint No.
HS-08-FEMA-00355 (Complaint 1) in which she alleged that various supervisors and managers
had discriminated against her on the bases of race (African-American), sex (female), and
disability in connection with five incidents that occurred between March and May of 2008. On
March 18, 2009, she filed Complaint No. HS-08-FEMA-00482 (Complaint 2), in which she
set forth a claim of discriminatory harassment on the bases of race, sex, and reprisal for filing
Complaint 1 that included ten additional occurrences between July 2008 and June 2009.

Complainant identified the following individuals as the Responding Management Officials: her
first-line supervisor between February 2007 and July 2008 (S1a); her first-line supervisor
between July 2008 and February 2009 (S1b); her first-line supervisor between February and
May 2009 (S1c); her first-line supervisor between May and her termination in June 2009
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(S1d); her second-line supervisor (S2); and her third-line supervisor (S3). The fifteen
incidents are described as follows:

Incident (1) – Between March and May of 2008, S1a denied Complainant training.
Complainant averred that one of the functions in the mailroom was to track the flow of mail on
a spreadsheet. She testified that, rather than allow her to receive training and perform the
function, S1a transferred the spreadsheet preparation responsibility out of the mailroom and
gave it to two individuals in another department. Investigative Report, Complaint 1 (IR1) 80-
81, 86, 103-05; Hearing Transcript 1 (HT1) 25-26. S1a responded that the two employees to
whom Complainant was referring had been performing the function for several years, and that
they were never given any training beyond basic instruction in using spreadsheet software.
S1a, S1b, and S3 stated that since the mailroom was going to be turned over to a private
contractor, the two individuals who had been preparing the spreadsheets would retain that
function in their new assignment. IR1 113-14, 122, 128; HT1 288-91; HT2 248-50.

Incident (2) – On April 23, 2008, S1a added comments on a number of leave slips that
Complainant had submitted. Complainant testified that when she noted the reason for taking
leave, S1a would add his own comments. When asked why S1a had done so, Complainant
responded that it was because of her race, gender and disability, but did not elaborate further.
IR1 79-80, 96. S1a responded that he never erased or altered Complainant’s comments; he
merely noted whether he was approving or denying her leave requests and giving his reasons.
IR1 113; HT1 286-99. S3 had discussed the matter with S1a and had determined that S1a had
acted properly. IR1 127-28; IR2 123-24; HT1 240-41; HT2 240-41.

Incident (3) – In May 2008, S1a, S3 and other management officials transferred Complainant
to the Records Management section. Complainant averred that when the mail room was closed
down and turned over to a private contractor, two male employees were allowed to remain in
the mail room until the actual shut-down while she and most of the other mail room employees
were transferred to the Records Management section four months before the shut-down was
due to occur. She acknowledged that her compensation was not affected by the move, but
stated that she would have preferred to remain in the mail room. IR1 78-79, 86. According to
S1a and S3, Complainant was one of ten employees who had agreed to transfer to Records
Management, and that the two men who remained in the mailroom until it closed were required
to move out the equipment and supplies. S1a and S3 also noted that Complainant was on light
duty and was under a lifting restriction. IR1 91-92, 108, 111; HT1 244, 291-92, 301-02; HT2
241-47; 300-03.

Incident (4) – On May 22, 2008, S1a and S1b used Complainant’s identity to request
information about her disability. Complainant averred that S1a had violated Agency policy by
attempting to contact the Office of Workers’ Compensation (OWCP), and that he had done so
because of his prejudices against Blacks, women, and people with disabilities. IR1 76-77, 85.
S1a testified that Complainant would often report to work late and claim that her tardiness was
due to a foot injury she had incurred back in 2006. S1a further testified that he contacted the
contractor that processed workers’ compensation matters in order to ascertain the status of
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Complainant’s claim. IR1 109. A Human Resources Specialist involved with the incident
testified that S1a’s inquiry centered around the circumstances under which an injury would be
considered work-related and the necessary supporting documentation. HT2 311-12. S1b
testified that he too had observed Complainant’s attendance problems and noted that
Complainant was very difficult and uncooperative. IR1 119-20. S3 advised Complainant that
management was entitled to know the status of her workers’ compensation claim. IR1 126-27;
IR2 121-23; HT1 293-94.

Incident (5) – On an unspecified date, someone misappropriated Complainant’s identity.
Complainant testified that someone was pretending to be her because she had received an email
thanking her for participating in a training class that she did not attend. IR1 77, 85. S1a
denied having anything to do with the email, and both he and S3 stated that it was probably
sent in error as Complainant’s daughter also worked for the Agency and shared her last name.
IR1 110; HT1 293; HT2 250-51.

Incident (6) - On July 22, 2008, S1b charged Complainant with being absent without leave
(AWOL). Complainant admitted that she had arrived late for work on July 11 and July 15,
2008, and on both occasions had failed to provide appropriate medical documentation to
substantiate her tardiness. She averred that she was not able to obtain notes from her doctor,
but did not elaborate. IR1 82. S2 and S3 testified that Complainant had attendance issues that
had been addressed by S1a prior to the AWOL charges being brought, and that her lack of
appropriate medical documentation was the primary reason for the charges. IR2 95-96, 173,
194; HT2 251-55.

Incident (7) – On August 29, 2008, S1b had extended a leave restriction that had been put in
place by S1a in May. Complainant averred that the leave restriction was supposed to end on
August 21, 2008, and that S1b had extended the restriction without notifying her in advance.
IR2 83. S1b testified that the leave restriction was never rescinded because Complainant’s
attendance had not improved. S1b further stated that Complainant continued to exhibit the
same problems that had been documented in S1a’s May 21, 2008 leave restriction
memorandum, including taking unscheduled leave on multiple occasions during a pay period,
taking leave for a complete pay cycle, and arriving late on days that she did come in. IR2 95,
125, 194, 214-15, 219; HT1 294-96.

Incident (8) – On August 15, 2008, S1b issued Complainant a five-day suspension.
Complainant acknowledged that she was being suspended because of the AWOL charges from
the previous July. IR2 83-84. A memorandum from S1b to Complainant dated October 15,
2008, indicated that in addition to being absent without leave on July 11 and July 15, 2008,
Complainant had refused to obey a direct order from S2 to attend a meeting. IR1 120; IR2 97-
98, 173-75, 193, 206-08. The NPSC Operations Chief ultimately reduced the suspension to
three days. IR2 190, 211-12; HT1 356-61.

Incident (9) – On October 25, 2008, S1b charged Complainant with being AWOL.
Complainant averred that she was absent for the week of October 21 through 25, 2008, and
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that she brought in a doctor’s note substantiating her need to take the week off. IR2 84, 90.
S1b and S3 testified that Complainant was charged with AWOL because she had left messages
on October 21 and 22, 2008, that she was going to be out of the office, but never gave a
reason, and that the medical documentation she had provided was not sufficient. IR2 98-99,
193; HT1 362-74; HT2 356-62.

Incident (10) – Since February 2009, S2 and other managers had been retaliating against
Complainant. Complainant testified that S2 had been harassing her and following her around.
IR2 87-88. S2 stated that he had emailed Complainant on February 20, 2009, concerning her
attendance problems, and that on April 7, 2009, he had directed Complainant to meet with him
regarding her failure to pass a training course that was part of her mandatory credentialing. S2
further testified that Complainant refused to meet with him as directed. IR2 174-78.

Incident (11) – On April 20, 2009, S1c issued Complainant a record of a conversation.
Complainant averred that S1c had charged her with being AWOL for thirty minutes. IR2 84.
A memorandum from S1c to Complainant dated April 20, 2009, indicated that the document
was a record of a conversation that she had had with Complainant concerning the fact that she
had logged in 36 minutes late on April 20, 2009. IR2 92, 164-66, 202.

Incident (12) – On April 30, 2009, S1c charged Complainant with being AWOL after she had
arrived ten minutes late for a training that had been scheduled the day before. Complainant
admitted the fact that she was ten minutes late for an 8:00 AM training session on April 29,
2009. IR2 85; 166-67; 182, 203; HT1 405-11.

Incident (13) – On May 6, 2009, S1d added one minute of unscheduled leave to Complainant’s
individual performance report (IPR). Complainant averred that on May 6, 2009, she had
logged in two minutes late, but that S1d recorded three minutes of unscheduled leave in her
IPR. IR2 86. S1d acknowledged the error but noted Complainant’s frequent use of
unscheduled leave. IR2 170.

Incident (14) – On May 21, 2009, S1d issued Complainant a verbal warning for tardiness.
Complainant averred that S1d gave her a verbal warning for being late. IR2 85-86. S1d
testified that the warning was given in response to the AWOL charges prepared by her former
supervisor S1c in connection with the occurrence on April 29, 2009. IR2 170, 186, 201.

Incident (15) – On June 2, 2009, S1d terminated Complainant. Complainant averred that S1d
at the behest of S2 issued Complainant a notice of termination. IR2 87. The memorandum
dated June 2, 2009, identified failure to follow instructions as the charges supporting the
termination decision. Multiple specifications were listed, including refusal to meet with S2 on
April 7 and April 14, 2009, after being directed to do so, and insubordination with S1c and
S1d. IR2 170, 186, 198-200; HTs 255-57, 340-42.

The Agency investigated Complaint (1) and Complaint (2) individually and presented
Complainant with a separate investigative report for each complaint. On April 12, 2010, the
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Agency consolidated the two complaints and notified Complainant of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Pursuant to Complainant’s timely request, the AJ assigned to the case held a hearing on
January 11 and 12, 2011, and issued a decision on March 29, 2013. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

STANDARD OF REVIEW
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. National Labor Relations Board, 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.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order to prevail on her claims of discrimination and discriminatory
harassment, Complainant would have to prove, by a preponderance of the evidence, that at
least one of the officials named in her complaint was motivated by unlawful considerations of
her race, sex, disability, or EEO activity in taking the actions that he or she took. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Wibstad v. United States
Postal Service

, EEOC Appeal No. 01972699 (Aug. 14, 1998). Evidence of unlawful motive
can include inconsistencies in the testimony among the various witnesses or between witness
statements and documents concerning the incidents at issue.
In finding in the Agency’s favor, the AJ determined that S1a, S1b, S1c, S1d, S2, and S3 were
highly credible witnesses and accorded their affidavits and hearing testimony great weight. 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). While
Complainant asserted that the actions taken by those officials were discriminatory, the fact
remains that the disciplinary actions visited upon her up to and including her firing were the
result of her own failure to abide by the Agency’s attendance policies and regulations while
serving under four different supervisors, as well as her acts of insubordination, particularly her
refusal to meet with S2 despite being ordered to do so on at least two occasions. Apart from
her own speculative assertions, Complainant has not presented any testimony from other
witnesses or documents that contradict the explanations provided by Complainant’s supervisors
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and managers, or which call their veracity into question. We therefore find no basis upon
which to disturb the AJ’s credibility determinations regarding the testimony provided by S1a,
S1b, S1c, S1d, S2, or S3. Ultimately, we agree with the AJ that Complainant has not
sustained her burden of proving that any of these officials acted upon unlawful considerations
of her race, sex, disability, or EEO activity in taking the various actions at issue in her two
complaints.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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).
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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

Date
May 7, 2015