0120131244
05-07-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120131244
Agency No. HS-USCG-22020-2012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 11, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Information Technology Specialist at the Agency's Telecommunications and Information System Command (TISCOM) in Alexandria, Virginia.
On May 8, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
1. on February 23, 2012, management issued her a "memorandum of workplace expectations;"
2. on February 2, 2012, management chastised her for taking too much time away from work to address a prior EEO complaint; and
3. on various occasions in February, March and April 2012, management removed supervisory functions from her (i.e. an alleged "constructive demotion").
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On January 11, 2013, the Agency issued the instant final decision, finding no discrimination. Without using a prima facie analysis, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Enterprise Network Infrastructure Product Line Manager stated that from the fall of 2011 to June 2012, he was Complainant's immediate supervisor. The supervisor stated that in regard to claim 1, the Executive Officer (XO) of the Command issued Complainant the memorandum of workplace expectations dated February 23, 2012. The supervisor stated "as the XO [Executive Officer] handles all administrative and personnel issues for the command. As the Complainant's supervisor I provided [XO] with input for his use in drafting the document."
Further, the supervisor stated the purpose of the memorandum was "to [lay] out the expectations of both sides and try to minimize misunderstandings and possible conflicts. The Complainant had felt uncomfortable being around [two named employees] as a result of the issues she had raised in her first complaint. She had previously been allowed by [XO] to skip an all-hands Command events, such as the 'Taste of the World' event in January 2012 where she might have had interaction with [the two employees]. However, I was never approached, informed nor asked if this was going to be a permanent excusal from all-hands meetings. In particular, there was an all-hands meeting of importance to the Commandant of the Coast Guard. The Commandant directed that the CO read, verbatim, a letter expressing the CG's non-tolerance of anything other than fair and equitable treatment of all members of CG family and that by-standers were equally guilty."
The supervisor stated at that time, he was aware that the two named employees would not be at the requisite all-hands meeting. Furthermore, the supervisor stated that Complainant never asked him to be excused from the requisite all-hands meeting. The supervisor stated that one goal for the memorandum was to make it clear to Complainant that she needed to coordinate her activities with him, as her supervisor. The supervisor stated that he and XO "desired to get a dialogue going to prevent future issues or misunderstanding. Another issue of concern was that she had refused to sign her work performance plan and had also requested that the XO take my place as her supervisor." The supervisor stated that he informed Complainant that is the Coast Guard (CG) policy "that signing the plan did not mean she agreed with its contents, merely that it had been discussed and reviewed, but still she refused to sign."
The supervisor stated that he and XO placed Complainant on notice that "....the Memorandum of Workplace Expectation also dealt with her desire to take many hours off to work on her prior complaint, which by this time had escalated to an EEO complaint. She asked for one day of telecommuting time to work on her EEO complaint in the privacy of her home, which I granted. She then asked for a second day, which I also granted. When she asked for a third day, I was unclear of how much time she was entitled to receive, nor the extent of the complaint." The supervisor stated that upon discussing this matter with XO, XO contacted Personnel to gather more information. The supervisor stated that XO "was told 4 to 6 hours was appropriate, and he conveyed that information to me. Despite this information, in the interest of getting the matter resolved, I went ahead and granted the Complainant a third day of telecommuting to work on her EEO complaint at home in privacy. However, I told her she would need to take annual leave if she needed further time beyond that."
XO stated that on or about February 9, 2012, he drafted the subject memorandum and had it reviewed by Human Resources "which made a few changes and approved it for issuance to the Complainant. The Memorandum was needed because the Complainant was being insubordinate to [supervisor], and undermined the Commands authority unjustly." XO stated that in the memorandum, he explained to Complainant that the memorandum was not disciplinary in nature "but was simply a means for me to be very clear about my concerns and guidance in relation to her actions. I also explained the same verbally. In the Memorandum I told the Complainant that she could be deemed insubordinate by how she was responding to [supervisor] and that it could not continue."
Further, XO stated that the objective in issuing the memorandum "was to prevent future conduct by the Complainant that could be inappropriate and potentially result in formal discipline." XO stated that another issue addressed during the meeting with Complainant "was to validate the Complainant's understanding of how much she could use during the normal work day to work on her EEO complaint."
Regarding claim 2, the supervisor stated during the relevant period, Complainant submitted her leave requests to XO "instead to me as her supervisor. I informed the Complainant that the supervisor is the appropriate place for leave approval. I deny 'chastising' the Complainant for taking leave to work on her EEO complaint. I gave her far more time to do so than Personnel said was necessary."
XO stated that he does not know anything about the supervisor or any management official "chastising" Complainant for taking off too much time to work on her EEO complaint. XO further stated that the supervisor "was consistently support[ive] of the Complainant's needs and worked closely with me to ensure we were making the right decision for the Command."
Regarding claim 3, the supervisor denied removing supervisory functions from Complainant. Specifically, the supervisor stated "I never removed the Complainant's supervisory functions and therefore did not 'constructively demote' her. However, Coast Guard reorganization at TISCOM created some challenges for me since the previous, never implemented, and now defunct plan had been for the Complainant to supervise a large number of employees. However, the current reorganization proposal that we were operating under, had her serving as a member of the WAN/LAN Branch in charge of the LAN functions, with only two Coast Guard employees."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 7, 2015
__________________
Date
2
0120131244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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7
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