0120111299
05-01-2013
Deborah A. Newsom, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Deborah A. Newsom,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111299
Agency No. ATL-06-2448-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 27, 2010 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Regional Attorney, GS-905-14, at the Agency's Office of Adjudication and Review (ODAR) in Atlanta, Georgia. Complainant came to the Atlanta office in March 2006 as part of a settlement agreement resolving a previously filed EEO complaint concerning a non-selection in the Agency's Raleigh, North Carolina office. She resigned from the Agency effective July 9, 2007.
On December 22, 2006, Complainant filed a formal EEO complaint alleging that she was subjected to harassment and a hostile work environment on the bases of race (African-American), disability (advanced avascular necrosis of the right hip and chronic back pain), and in reprisal for prior EEO activity when:
1. She was continually harassed by her first level supervisors, the Regional Chief Administrative Law Judge (ALJ) and the Assistant Regional Chief ALJ1 regarding her leave usage. Complainant alleged that her requests for leave were denied, but she is not informed, and has no knowledge if her requests have been approved or denied until she receives her paycheck. She was required to submit documentation for every medical appointment, interrogated about the nature of her medical appointments, and antagonized when she requested leave. She was accused of abusing sick leave and administrative leave. She was charged with being absent without official leave and leave without pay despite providing medical documentation. Ultimately, on October 16, 2006, she was issued a Counseling on Leave Usage memorandum. Her requests for copies of her leave slips have not been granted. Her requests to work compensatory time are denied.
2. On November 7, 2006, the Assistant Regional ALJ harassed her by calling Complainant to a meeting and having her stand for approximately 20 minutes, which aggravated her disabilities. The Assistant Regional ALJ proceeded to demoralize Complainant in the presence of two other Regional Attorneys when she questioned Complainant's work ethics and judgment. Complainant was questioned about work projects and accused of being untimely and of losing documents. Further, she was directed to have a lower-graded attorney review her work.
3. On November 17, 2006, she was issued an official reprimand for becoming emotional at the November 7, 2006 meeting.
4. On May 9, 2007, she was called to the office of the Regional Chief ALJ with the Assistant Regional Chief ALJ where they questioned her about not being at her desk and would not accept her explanation that she had not been away for any extended period of time.
5. Management failed to address her requests for reasonable accommodation, including to work at home, for a reassignment to a new supervisor, for a secluded cubicle, and a private office.
6. Management assigned her a much heavier workload than a named female Regional Attorney (RA1). RA1 was allowed to work additional hours while Complainant's requests to work additional hours are denied. Complainant was assigned EEO responsibilities for the region, but not given the opportunity to adequately train herself, perform the required research or prepare for the new position.
The record reflects that during the relevant period Complainant was diagnosed with advanced avascular necrosis of the right hip. Complainant alleged that she had difficulty walking due to severe hip pain and has used a cane since she reported to the Atlanta Regional Office in March 2006. Complainant also has chronic back pain which makes it difficult for her to sit or stand for prolonged periods. The record further reflects that Complainant takes several medications for her condition which have some adverse side effects such as nausea, nervousness, confusion, insomnia and difficulty concentrating. Complainant alleged that management was aware of her condition because of her use of a cane and her "severely compromised gait," which was readily apparent. Complainant states, however, she is able to perform the essential functions of her job if she were to provided a private office to allow her to concentrate.
The record further reflects that during her tenure at the ODAR Regional Office, Complainant went on extended medical leave from November 13, 2006 through March 8, 2007. Complainant returned to duty on March 9, 2007.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The record reflects that on March 11, 2008, Complainant filed a motion to amend her formal complaint to include a claim of constructive discharge. Specifically, Complainant alleged that she was forced to resign in June 2007. The AJ granted Complainant's motion and dismissed the case without prejudice to allow Complainant to pursue her constructive discharge before the Merit Systems Protection Board (MSPB). The record reflects that on June 6, 2008, Complainant appealed to the MSPB.
On November 22, 2008, the MSPB issued its Initial Decision finding Complainant failed to establish that she Agency engaged in a course of action that made working conditions so difficult that a reasonable person in her position would have felt compelled to resign (MSPB Docket No. AT-0752-08-0634-I-1). Complainant did not appeal the MSPB decision, and subsequently renewed her request for a hearing before the EEOC on December 1, 2008.
Complainant's case was reassigned to an AJ. After discovery and the filing of dispositive motions, Complainant withdrew her hearing request, and requested that the Agency issued a final agency decision. On November 12, 2009, the Agency requested that the record be supplemented to include the documents that were previously made part of the record before the MSPB and were related to the claims in the instant formal complaint, including additional claims that were never investigated but were adequately developed during the MSPB proceedings. On November 16, 2009, the AJ dismissed Complainant's request for a hearing and indicated that the evidence submitted by the Agency is "already part of the hearing record."
On November 27, 2010, the Agency issued the instant final decision finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, disability, and retaliation. The Agency 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. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, disability, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. On appeal, Complainant argues that she was subjected to ongoing harassment. Complainant further argues that when she returned to work in March 2007, she "was optimistic that the hostile work environment may have improved. To her dismay, the conditions at the ODRA office only worsened after she returned. When she returned to the office in March 2007 she was given a letter informing her that she was still on leave restriction. Upon her return, Complainant's leave requests were increasingly denied."
Further, Complainant argues that the Agency erred in basing its reprisal analysis "on the date Complainant first filed her complaint and ignored the fact that Complainant was placed in the position of Regional Attorney, GS-14, in 2006 as a settlement of her 2001 complaint. Complainant's placement into the position as a settlement for her complaint was protected activity in itself and occurred in 2006. Complainant is protected from retaliation for all EEO activity, and not just the act of filing an EEO complaint."
Moreover, Complainant argues that when the Agency "merely notes Complainant's response to the 3 day proposal to suspend was not 'reasonable' and Complainant was not facing termination when she was forced to resign. The Agency erred in not investigating the proposal to suspend to determine if it was warranted or just further harassment by [the Regional Chief ALJ] and [Assistant Regional Chief ALJ]."
ANALYSIS AND FINDINGS
Disparate Treatment
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).
In the instant case, we find that responsible Agency management officials articulated legitimate, nondiscriminatory reasons for the disputed actions in their statements taken during the investigation. Regarding claim 1, the Regional Chief ALJ (hereinafter referred to as "S1") stated that during the relevant period he was Complainant's supervisor of record. S1 stated that generally Complainant "would not communicate with me orally about her leave request until just before she resigned. She often submitted her leave requests just before the requested leave period and would leave it in a box outside my door. I do communicate with the requester by either writing the disapproval on the leave slip indicating the reason why it was denied, or if a longer explanation is required, by communicating in writing on a separate document addressed to the requester if the request was denied."
S1 stated that on October 16, 2006, Complainant was placed on leave restriction as a result of her pattern of reporting to work late and extensive leave usage, "but she was not interrogated or antagonized. Such tactics ware not appropriate, would not be tolerated by me, and are counterproductive because they undermine the operation of the office. This is not my goal." Specifically, S1 stated that when the Assistant Regional Chief ALJ (hereinafter referred to as "TL") assumed the responsibility as Complainant's team leader, she noted that Complainant "was frequently late to work and had so many requests for leave, some of which conflicted with scheduled meetings and training...she informed me that [Complainant's] annual leave balance was low and she had an advanced sick leave balance. [TL] further informed me that she had reviewed the time sheets and noted [Complainant] was coming in late and working late and earning credit hours, sometimes in violation of the credit hour policy. [TL] further noted that [Complainant] also worked compensatory time without the required prior approval."
S1 stated that after TL spoke with Complainant about her concerns about her leave usage, the problems continued. Specifically, S1 stated that TL "began to question the legitimacy of the requests and asked me to convene a meeting with Complainant. Given the frequency of her medical appointments and the lack of any medical documentation to support the absence, [TL] felt she needed to be counseled and put on leave restriction that required medical documentation. I agreed with that premises."
S1 stated that on October 5, 2006, he and TL met with Complainant. S1 stated that TL shared her concerns with Complainant about her leave and stated she would need to submit medical documentation to support her absences. S1 further stated that TL informed Complainant that she would "put the requirements in a leave restriction letter. [TL's] action was based solely on Complainant's pattern of lateness and leave usage; it was in no way motivated by her physical disability, race or reprisal. When [TL] gave her the letter of counseling [TL] told [Complainant] it was not [her] intention to harm [Complainant] or discipline her. [TL's] sole motivation was to assure she would be present so that we could get the work done. I discussed and agreed with this course of action prior to the meeting with the Complainant."
TL stated that when she assumed responsibility for Complainant's leave requests in August 2006, she noted that Complainant was frequently late to work and had many requests for leave, "some of which conflicted with scheduled meetings and training. Her annual leave was low and she had an advanced sick leave balance." TL further stated that on October 5, 2006, she and S1 met with Complainant to discuss her leave usage. Specifically, TL stated that she told Complainant that "she would need to submit medical documentation to support her absences. I stated I would put the requirements in a leave restriction letter. My action was based solely on Complainant's pattern of lateness and leave usage; it was no way motivated by her physical disability, race or reprisal...my sole motivation was to assure she would be present so that we could get the work done."
TL stated that Complainant requested compensatory time "a couple of times when I was managing her leave. In August 2006, she worked comp time on August 10 and 13 [2006], and requested approval after the fact. I told her that I would approve those requests after the fact that one time; but henceforth, all requests would have to be pre-approved. She had comp time requests approved in September 2006. In an email on October 11, 2006, I reminded her of the need to have comp time pre-approved. The next day, she worked comp time without advance approval. She left me a note stating that she had missed me before I left but she still stayed and worked and she would like to get comp time for it. I responded that I was in the office until 4:30 and was surprised she couldn't contact me about working comp before then. I nonetheless approved her time and told her I would not do so again. I do not recall any requests for comp time after this. I recall no time I denied her comp time."
Further, TL stated that after the issuance of the October 16, 2006 memorandum, Complainant provided her medical documentation "with the exception of [Complainant's] absence on November 6, 2006 for 3.5 hours for a doctor's appointment. I reminded her to submit the documentation by [November 13, 2006], or be placed in AWOL [Absent Without Official Leave]. As she did not submit the documentation - she could not find it - she was placed in AWOL but I told her the status would be reconsidered if she found the documentation. When she faxed it in, I advised her that her leave would be changed from AWOL to an approved leave status, and I asked her what leave status she was seeking."
Regarding claim 2, on November 7, 2006, TL held an impromptu meeting in her office concerning the completion of the fourth quarter Official Time and Expenses Report. TL stated that the meeting was to determine the missing source documents necessary to complete the report. TL stated that the "report was not yet completed and [a named employee] came by to let me know where it stood. There was a question of whether we needed to re-contact all our offices for the source information. I called [Complainant] to my office to find out what she knew about the source document because she had worked with them the prior months to prepare monthly reports. When I asked her and [the named employee] to look again for the documents in the absent employee's cubicle, [Complainant] stated she was busy handling a response to a grievance."
Further, TL stated that she asked Complainant about a certain case and, "I indicated that it was not due until the end of the week. [Complainant] replied [she] had to rewrite it because [named employee] had indicated it was too verbose. [Named employee] stated, however, she had not actually looked at the response. I then pointed out that [Complainant] had earlier advised [a Judge] he had done a good job on his proposed response. I asked why the change and [Complainant] said it was based on [named employee's] input. [Complainant] then became agitated and said something to the effect you would let it go the way it was and turned and left my office. We then heard screams from the area of [Complainant's] cubicle and [named employee] went out and saw [Complainant] throw something toward [her] computer. [Complainant's] screams continued as [she] went out into the hall by the elevators."
TL stated that her office "is very small and has two chairs - many times people stand when they come in my office or they grab a chair from outside and wheel it in. When Complainant came in, the chairs were occupied by [named employees], and [Complainant] stood leaning against the wall. It was not unusual for her to stand, as I have seen her get up and do so in other office meetings. On this date, she expressed no need or desire to sit down. She did not appear to me in distress, and at any time during the meeting she could have stepped out and pulled in a chair so she could sit down. I also do not think the meeting lasted 20 minutes."
Further, TL stated that she did not question Complainant's work ethics and judgment. TL stated that she did not feel her comments to Complainant were demoralizing. Specifically, TL stated that her comments were triggered solely by Complainant's unwillingness to help look for documents that were needed to complete an overdue report. Interestingly, a number of those documents were later found by [named employee] on Complainant's desk when [named employee] went to Complainant's desk to find a grievance she needed to deal with for Complainant in Complainant's absence."
Regarding claim 3, TL stated that on November 17, 2006, she issued Complainant an official reprimand. The record contains a copy of the November 17, 2006 Official Reprimand. Therein, TL placed Complainant on notice that she was being reprimanded for her disruptive and disorderly conduct on November 7, 2006. TL determined that Complainant's inappropriate conduct disputed the Regional Office and "it also disrupted people in the training room adjacent to the elevator area and in the Office of General Counsel down the hall. In addition, regional office employees who were down the hall in the training annex heard [Complainant's] screams and came out to find out what was going on." TL stated that Complainant was in violation of Part 1, Section 106 of the Standards of Conduct. Section 106 states "conduct on and off the job; treating others with courtesy and consideration."
Regarding claim 4, S1 stated that on May 9, 2007, he noted that Complainant was not at her workstation in the morning and "later, I had the opportunity to go by her workstation several more times and noticed she was not still there." S1 stated that sometime after 11:30 a.m., he asked TL if she knew where Complainant was and "she stated she did not. She also stated that she had noticed that [Complainant] was not at her cubicle and further, that [named employee], another member of the Regional Office staff, had been looking for her also." S1 stated that approximately 2:00 p.m., he sent Complainant an email stating that he went by her workstation several times and noted she was not there, and asked her to stop by his office when she returns to work. S1 stated that a short time later Complainant and a named employee came to see him and "sat down (I had sent a similar email to [named employee]). Both wanted to remain in my office while I discussed the matter of each individual's absence from the office. I told them I was not inclined to do this and that one of them would have to leave. I would then call that person that left back into my office and discuss the matter with that employee afterwards. [Complainant] chose to leave."
Further, S1 stated that after discussing the named employee's absence with her, he asked Complainant to come in to see him. S1 stated that he asked Complainant for an explanation for her absence and Complainant "stated that she had gone to get her therapy 'post op' [for] her hip surgery for a two hour period from 12 noon until 2 p.m. [Complainant] stated that the period from 12 noon until 1 p.m. was her normal lunch period and no excuse was needed for that. She stated that she had a leave slip for me to approve for the absence from 1 p.m. until 2 p.m. Then [Complainant] told me that I had agreed that she could go to her doctor without having to notify me in advance. I told her that was incorrect and that I never told her that. Then her voice became louder and got very loud as she accused me of trying to get rid of her. I reminded her that I had not raised my voice. I asked her to lower her voice. [Complainant] said she had brought another leave slip and wanted to leave for the rest of the afternoon. She then asked me if there was anything else that I wanted 'marster' (possibly 'massah'). I told her [that] her remark was very insulting and that I did not appreciate the insult. I signed her leave slip and then she very angrily left the office."
S1 stated that he then contacted the Regional Management Officer to discuss Complainant's conduct. Thereafter the Regional Management Officer prepared a recommendation to discipline Complainant for making the insulting comments.
Regarding claim 5, S1 stated that on October 26, 2006, TL recommended that Complainant's request to work from home be denied "because the medical documentation did not indicate [Complainant] could not commute to work . . . I denied the request to work at home. I interpreted the memo Complainant as only a request to work at home as indicated in the subject line of the memo. While she did state in the memo that in the alternative she was seeking a more flexible reporting schedule, she did not elaborate on that request and I did not interpret it as a request for reasonable accommodation. Even if it should have been so interpreted, there was no medical documentation submitted to support the need for a more flexible reporting schedule than Complainant already had, i.e. between 6:30 and 9:30 a.m."
S1 further stated that ever since Complainant returned to work on March 9, 2007 following her surgery, "I am unaware of any existing medical condition for which she has sought accommodation. The only medical evidence she has provided me is a letter dated December 29, 2006 stating she can return to work in 10 weeks."
With respect to Complainant's request for a private office, S1 stated that he advised Complainant in writing "that the regional office was going to be expanded and she would be provided an office at that time." S1 stated that in regard to Complainant's request for a secluded cubicle, S1 stated he was not sure what Complainant meant "by a 'secluded' cubicle and cannot answer this question. Normally all managers in the Regional Office are provided an office. Also, Grade 14 lead attorney advisors are provided offices."
Regarding claim 6, TL denied assigning Complainant a "much heavier workload" than a named Regional Attorney (RA) "or any other attorney in the office."
S1 stated that during the relevant period Complainant did not incur a "much heavier workload." Specifically, TL tried to keep all of the employees' workloads balanced. S1 stated "initially, another employee was given all of the EEO responsibilities for the Region in August, 2006. When she was no longer available then this was given to the Complainant in April, 2007. However, one of the states that she had been given responsibility for was taken from her by [TL] thus balancing the workload."
Further, S1 stated that the EEO responsibilities are not considered an additional duty assignment, and that "it is a major duty and responsibility. A description of responsibilities associated with EEO is in the position description for Regional Attorneys, which already has been provided. There is no separate description of EEO responsibilities apart from the position description."
S1 stated that Complainant was not prevented from working additional hours and "if the Complainant will provide specific instances in which she believes she was denied additional time to work I will be happy to respond to each of them." Furthermore, S1 stated "I am not aware of the Complainant requesting EEO training from me. There are no training requirements for Complainant's position; however, there are other employees in the Regional Office who previously handled the EEO workload and were available for questions."
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.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, for the same reasons already articulated above, we conclude that the evidence does not establish that the incidents alleged by Complainant occurred because of her race, disability and prior protected activity.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Complainant has not shown that the Agency wrongfully denied her reasonable accommodation. We specifically note that the Agency reviewed Complainant's request to work from home but denied it based on insufficient medical documentation. We also note that that TL stated that there was no medical documentation to support Complainant's request for a more flexible reporting schedule than the one she already had. We note that according to S1, he stated that when Complainant returned to work in March 2007 following her surgery, she did not request any accommodation. Specifically, S1 stated that he only received a letter dated December 29, 2006 from Complainant's physician stating that she could return to work in 10 weeks.
Further, we note that S1 stated that in regard to Complainant's request for a private office he assured Complainant that because the regional office was being expanded, she would be provided an office at that time. Accordingly, we find that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act.
Constructive Discharge
Constructive discharge occurs when an employee resigns from his or her employment because he or she is being subjected to unlawful employment practices. If the resignation is directly related to the Agency's unlawful employment practices, it is foreseeable consequence of those practices and constitutes a constructive discharge. The Agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a complainant. To establish that he was constructively discharged from his position, Complainant must show (1) that his resignation resulted from the Agency's actions, (2) that the Agency's actions were discriminatory, and (3) that a reasonable person in his situation would have found the Agency's actions intolerable. See Malpass v. Department of Veterans Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, to establish that she was constructively discharged, Complainant must first show that the Agency's actions were discriminatory.
We concur with the Agency and find that substantial evidence supports that Complainant has not shown that Agency management engaged in discriminatory actions which became so intolerable that she had no choice by to resign. As discussed above, the Agency established legitimate, nondiscriminatory reasons for its actions. Specifically, we note that the record reflects that management had concerns about Complainant reporting to work late and her extensive leave usage. Moreover, there is no evidence that the Agency's actions were motivated by discriminatory animus. Accordingly, we find that Complainant has not established that she was constructively discharged.
In summary, we note Complainant's extensive arguments on appeal, which include but are not limited to, purported deficiencies in the investigation, claims that the Agency's final decision relied upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We, however, determine that the Agency properly conducted an adequate investigation of the instant complaint. We note that Complainant could have supplemented the record with evidence presented at a hearing before an EEOC AJ, but voluntarily withdrew her hearing request. Moreover, she litigated these same issues of alleged discrimination before the MSPB, which did not find in her favor.
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 1, 2013
__________________
Date
1 Upon her arrival in the Atlanta office in March 2006, Complainant was assigned to work under the Regional Chief ALJ and he remained her supervisor of record during the entire period at issue. However, starting in August 2006, Complainant's workload was reviewed and overseen by the Assistant Regional ALJ as her team leader.
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Washington, DC 20013
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