0120132109
07-17-2014
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120132109
Hearing No. 570-2010-00211X
Agency No. DOS-F-0050-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 12, 2013 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Budget Analyst at the Agency's International Conferences Section, Bureau of International Organization Affairs in Washington, D.C.
On March 10, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability,1 age (over 40), and in reprisal for prior EEO activity when:
1. her request to work an Alternate Work Schedule (AWS) was denied;
2. all or some of her supervisory responsibilities were removed;
3. she was subjected to a hostile work environment; and
4. she was denied a reasonable accommodation for her alleged disabilities.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On June 27, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order.
In his decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, disability, age and reprisal discrimination. The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
In its final order, the Agency adopted the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
In reaching the conclusion that no discrimination had been proven, the AJ noted that in regard to claim 1, Complainant's supervisor stated that when Complainant started working in the Office of International Conferences, Complainant had a compressed work schedule which allowed her to take one day off every two weeks. Specifically, the supervisor stated that Complainant took off the first Monday of every pay period, worked 9 hours for the following 8 workdays and then worked 8 hours on the final day of each pay period.
The supervisor stated that it was standard procedure of the Executive Office to review the employees' schedules every 6 months and to ensure the appropriate documentation is filed. The supervisor stated that on September 5, 2008, during a regular Office of International Conferences staff meeting, the Office Director announced that employee schedules were to be reviewed to ensure alignment with the Agency's mission requirements and to make sure documentation was current and on file with the Executive Office.
The supervisor stated that on September 18, 2008, she discussed the Office Director's announcement with Complainant. The supervisor stressed that management needed to assure that all necessary documentation was in place for employees' schedule and "that we need to re-evaluate whether [Complainant's] compressed work schedule fit with the needs of the office, given that she was the Senior Budget Analyst and a key member of the staff. I informed her that given daily, high-level budget requests, we need to see if her existing schedule was appropriate. Office management was especially concerned with [Complainant's] compressed work schedule because it became clear that an unfair burden was falling on the junior budget officer to complete [Complainant's] work for her on her days off instead of [Complainant] completing her work during the days she was in the office." The supervisor stated that she asked Complainant if they could discuss her schedule after the end of the fiscal year. However, Complainant informed the supervisor that she would have a problem "with any change to her schedule and accused me of 'singling her out' and 'harassing her.'"
The supervisor stated that on October 24, 2008, she notified all three employees under her supervision that she would be holding mid-cycle meetings as a follow-up to the Officer Director's announcements. The supervisor stated that she scheduled Complainant's progress review for October 28, 2008. However, Complainant refused to meet with her and left work early before the scheduled meeting.
Further, the supervisor stated that "during the same week, [Complainant] asked to move her eight hour day from the last Friday of every pay period to the second Monday of every pay period so she could take a class outside of work. I approved this request and informed [a named Office Director] that the new schedule would begin on Monday, September 22, 2008."
The supervisor stated that on November 8, 2008, she started working in the Front Office as a Transition Coordinator at the request of the Principal Deputy Assistant Secretary. The supervisor stated that during the relevant period, the Deputy Director of the Office of International Conferences became the first-line supervisor of the employees under her supervision, including Complainant. The supervisor stated that the Deputy Director continued to remind Complainant that she needed to submit the required paperwork with justification to continue her compressed work schedule. On November 20, 2008, Complainant submitted her paperwork.
The supervisor stated that Complainant "said she needed a new compressed work schedule to accommodate 'several medical appointments,' an ongoing 'Masters Program,' and 'work[ing] long hours.'" The supervisor determined that Complainant's justification was not acceptable because Complainant "could schedule leave to go to medical appointments. Additionally, [Complainant] had told me that she needed to depart by 5:00 p.m. to attend evening courses for her Master's Program, hence the approved shift in her schedule in September [2008] referenced above. Finally, [Complainant] did not provide clear explanation for why she included 'work[ing] long hours' in her justification, given that alternate work schedules, including the compressed work schedule she requested, are still based on a regular 40-hour work week and 80-hour pay period. Working additional hours would need to be requested in advanced and approved on an as-needed basis."
Furthermore, the supervisor stated that Complainant's request for a compressed work schedule was denied "because such a schedule was not effective, efficient, or in the best interest of our organization. [Complainant] was needed to carry out budget work on a daily basis. Her regular absences and failure to regularly complete her duties were having a significant, negative impact on the office's ability to perform even basic functions. As a result, she was needed in the office as much as possible for follow up to ensure all budget requirements were addressed. I informed [Complainant] that her request for a compressed work schedule could be re-considered at a later date."
The AJ also noted that the record reflects that after being denied a job promotion, Complainant's work performance "became unsatisfactory, and she engaged in chronic tardiness and absenteeism - totaling 322 documented hours of AWOL - that led to repeated disciplinary actions against her."
The Deputy Director stated that she supported the supervisor's recommendation to disapprove Complainant's request a compressed schedule "for two reasons - [Complainant's] performance and constant absenteeism."
Regarding claim 2, the supervisor stated that as a Senior Budget Analyst, Complainant was responsible for overseeing, managing, and delegating duties to the GS-12 Budget Analyst. The supervisor further stated that Complainant had the ultimate responsibility for all funds managed by the Office of International Conferences. The supervisor stated that after Complainant "released the GS-12 budget analyst to take a position in another bureau, some duties [Complainant] delegated to him were assumed by the GS-12 program officer, and continued to be overseen by [Complainant]."
Further, the supervisor stated that the Deputy Director informed her during a comprehensive review of all employees' position descriptions that the supervisory role of the GS-13 Budget Analyst had been attached as an addendum and "was not part of the permanent position description. [Deputy Director] informed me that she was considering removing the supervisory addendum after the departure of the GS-12 budget analyst, in order to better align responsibilities to office needs. I do not recall receiving confirmation that she carried out this action and not aware of the date on which it may have occurred."
With respect to Complainant's allegation that she was excluded from management meetings, the supervisor stated that she was not aware of Complainant being excluded from meetings. The supervisor stated, however, she was aware that Complainant "regularly did not attend meetings that she was supposed to attend with management. For example, on Friday, August 29, 2008, [Complainant] left a regularly scheduled staff meeting early and then did not show up for a budget meeting pre-schedule to immediately follow the staff meeting. Additionally, [Complainant] consistently questioned the role of her office management and demonstrated a disregard for her hierarchy."
The Deputy Director stated that on November 6, 2008, she informed Complainant that her supervisor duties were being removed because her Position Description (PD) provided by Human Resources "did not reflect any supervisor responsibilities other than work loading the GS-12 Budget Analyst. On Dec[ember] 1, 2008 [Complainant] was making a point that she was her own supervisor and did not have to provide [supervisor] any budget statuses. This occurred because [Complainant] refused to provide her supervisor a budget status. [Complainant] felt I would take her side so I took a moment to explain the difference in her PD and [supervisor's] PD. I also told [Complainant] that [supervisor's] PD states that she is responsible for the IO/C budget execution and its management."
Further, the Deputy Director stated at that time, it was important to place Complainant on notice that her supervisor duties were being removed "because she deliberately and repeatedly interfered with [supervisor's] supervisor roles and responsibilities. [For] example: [Complainant] approved the release date for the GS12 Budget Analyst without discussing his release with the Division Chief or the Director. She further failed to ensure the analyst closed his accounts that gave him access to IO/C budgetary systems prior to his departure. Third, [Complainant] left the IO/C short a budget analyst and was secretly engaging into personnel actions without by listing herself as the selecting supervisor for the replacement budget analyst. Finally, [Complainant] stated she submitted a performance report without the Reviewing Official ([supervisor]) or Senior Reviewing Official (Director) input or comments."
Moreover, the Deputy Director stated that between November 2008 and January 2009, she and Complainant "had at least three counseling discussion about why she was not a supervisor and could not be a separate branch from the Program Division. Each discussion ended badly followed with temper tantrums, slamming of the budget office door, and further hostility towards her supervisor [supervisor]."
Regarding claim 3, the supervisor denied subjecting Complainant to a hostile work environment. For instance, the supervisor stated that on February 3, 2009, she returned to the Office of International Conference to cover as acting Office Director, she asked Complainant to come in her office to discuss a letter of leave restriction. The supervisor stated, "I went over a letter of leave restriction with [Complainant], thoroughly explaining its contents. I emphasized my desire to work with her on the leave issues outlined and asked her to sign and date the letter to acknowledge receipt. She said she would not sign. I called [a named Agency official], the next most senior person present, into my office and asked her to sign as a witness that [Complainant] refused to sign. I asked [Complainant] if she wanted to re-consider signing to acknowledge receipt as I wanted to work with her on leave practices. As I said this, [Complainant] loudly talked over me, repeating 'you already have my response.' She said she would not sign anything negative, and then said 'you are not getting my signature, is there anything else you need? I said 'no,' concluded the meeting and [Complainant] loudly exclaimed, 'this is harassment. Every fucking day, it's harassment. That's why I don't want to come here.' As she continued her outburst, I went over to her office and asked her to calm down and refrain from using offensive language in the office. [Complainant] jumped out of her chair and slammed her hands on her desk. She exclaimed 'I am not going to deal with this!' She blew past me and left her office, continuing her outburst. I became very concerned for the safety of everyone in the office and called security from [Complainant's] desk."
Further, the supervisor stated that when security answered her call, she provided them the office location and "expressed my concern that there was an irate employee in the office that may need to be removed. They took my name and informed me that they would send someone right up. [Complainant] was standing right outside her office and heard me on the phone with security. She asked a contractor just leaving a closed-door meeting nearby to come into her office to meet with her. She sat down at her desk and calmed down. I filed a report with security upon their arrival. They departed. [Complainant] closed her door. About one and a half hours later, [Complainant] called an emergency response team to remove her on a gurney, saying her blood pressure was high."
The Deputy Director stated that during the relevant period Complainant "told me that she did not like her supervisor. She blatantly disrespected her supervisor, and often took offense to her questions? Other than her encounters with [supervisor], [Complainant] did not tell me about another conduct or behavior that caused her to believe she was in a hostile work environment."
With respect to Complainant's allegation that the Deputy Director send letters to her home telling her she would be charged Absent Without Leave (AWOL), the Deputy Director acknowledged she sent two letters "to explain the doctor's statement she provided for FMLA could not be accepted because it did not answer the FAM's question. Nor was the statement signed by her doctor." The Deputy Director stated "these letters were my way at attempt to have [Complainant] to acquire the correct documentation from her doctor because she refused all management calls. My intent was to reverse the AWOL or LWOP in TATEL pay system but to date I need received the appropriate documentation."
Furthermore, the Deputy Director stated that after Complainant received the letters, she received "an irate phone call from her husband who told me that I was not to have anymore contact with his wife [and] that we were to talk to her [lawyer]."
Regarding claim 4, the supervisor stated that during the relevant period she was not aware of any duties that Complainant was unable to perform due to any medical restrictions. The supervisor further stated "to my knowledge, [Complainant] fully accepted the duties of her position with no restrictions or limitations."
The supervisor stated that on August 11, 2008, after Complainant expressed health concerns to her, she recommended that she look into possible accommodation such as telework. The record reflects that Complainant wanted to telework 2 to 3 days per week. The supervisor stated that on August 19, 2008, she received Complainant's electronic request for telework as a reasonable accommodation. The supervisor stated that she then contacted the Employee Relations employee to discuss Complainant's telework request and "asked how to proceed. She informed me that I needed to find out what our Bureau's policy was for telework and adhere to that when making a decision. When I told [a named Employee Relations employee] that [Complainant] was the Senior Budget Analyst, [Employee Relations employee] recommended that I not start a telework arrangement until after the end of the fiscal year. [Employee Relations employee] also recommended a pilot basis to see how it went and told me that she informed [Complainant] of her right to invoke FMLA to address issues and directed me to HR's website for more information on it."
Further, the supervisor stated that on August 25, 2008, she met with a named employee in the Executive Office to discuss the Bureau's policy on telework and "she informed me that the Executive Office upholds a policy of one telework day per week - two days in well-justified cases. [Named employee] shared [Complainant] would need to provide a medical assessment from her doctor as well as a description of her duties with a work plan to the Medical Unit in the Department, who would then recommend an appropriate accommodation." The supervisor stated that following her meeting with the named employee, she gave Complainant the form she needed to have her doctor fill out and requested that Complainant submit it to the Medical Unit for evaluation "explaining that it would help assess her telework needs and allow us to respond to her request for reasonable accommodation. [Complainant] informed me that Employee Relations had already given her the form and said she was in the process of having her doctor fill it out."
The supervisor stated that on September 3, 2008, Complainant asked her regarding the status of her reasonable accommodation request and "I told her my understanding was that her telework request was still pending the submission of the medical questionnaire [that] both Employee Relations and the Executive Office instructed her to fill out. She said the questionnaire was in process and that she would pick it up from her doctor soon. I reminded her that she needed to hand it into the Medical Unit so a recommendation could be made to the Executive Office." The supervisor stated that on October 30, 2008, Complainant again asked her for a status on her request and "I again informed her that my understanding was an assessment had still not been completed due to her failure to submit all required documentation. On Thursday, November 6, 2008, [Complainant] sent an e-mail to [Employee Relations employee] in Employee Relations, [named employee] in the Executive Office, copying [Deputy Director] and myself, withdrawing her request for reasonable accommodation."
After careful review of the record, we find that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. Complainant failed to persuasively identify issues of material fact that would require a hearing to resolve. Moreover, based on the record developed during the investigation, as well as arguments presented on appeal, Complainant failed to prove, by a preponderance of the evidence that the Agency's proffered legitimate reasons for the actions in dispute were a pretext for discrimination based on Complainant's race, disability, age or prior protected activity.
The Agency's final order implementing the AJ's decision finding no discrimination is AFFIRMED.2
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
July 17, 2014
__________________
Date
1 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability.
2 On appeal, Complainant does not challenge the April 10, 2009 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when in July 2008, she was not selected for a GS-14 Supervisory Program Officer position advertised under Vacancy Announcement No. IO-2008-2006). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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