0120152234
08-08-2017
Kim S.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kim S.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152234
Hearing No. 420201400249X
Agency No. 146823300563
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), the Agency's May 8, 2015 final order concerning an equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Interdisciplinary Instructional Systems Specialist (GS-12) in the Exam Development Division at the Navy Advancement Center Department, NETC, Naval Education and Training Professional Development and Technology Center ("NETPDTC") in Pensacola, Florida.
On February 26, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of reprisal for prior protected EEO activity when, on November 1, 2013, the Commanding Officer rescinded authorization for Complainant to use annual leave in order to volunteer as a Mediator in Civil Small Claims Court during work hours.
In February 2006 Complainant asked the Acting Commanding Officer ("CO"), his sixth level supervisor, for authorization of administrative leave to volunteer one afternoon (4 hours) per month as a mediator in (non-federal) civil court. Under Agency guidance, "administrative leave" or "excused absence" meant "an authorized absence from duty without loss of pay and without charge to other paid leave...[that] are considered part of an employee's basic workday even though the employee does not perform his or her regular duties." When granting administrative leave for a volunteer activity, the Agency was considered as "sponsoring" the volunteer activity or organization as it was providing an Agency resource. Agency policy required "sparingly" and only when it benefitted the Agency's mission. Examples of volunteer activities approved for administrative leave include donating blood, mediating cases for the Agency's mediation program, participating in certain employee wellness programs, or to support federal initiatives, such as the Combined Federal Campaign ("CFC"). Within these parameters COs and Supervisors still have discretionary authority for granting administrative leave.
The Acting CO granted Complainant's request, believing the mediation program was consistent with the Agency's "high priority" emphasis on community involvement at the time. For the next seven years, Complainant continued his monthly Agency-sponsored volunteer mediation. According to his first level supervisor, the volunteering caused Complainant to miss important meetings, but ultimately it did not negatively impact his performance. She also clarified that Complainant's mediation experience did not benefit the Agency, as it had no direct relation to Complainant's function within the Agency. As an Interdisciplinary Instructional Systems Specialist, Complainant's job was to create 7 advancement exams per year, maintain a bank of exam questions, and assist Agency Chiefs by verifying or reviewing exam content. Regardless, none of the supervisors and COs Complainant worked under during the relevant time frame questioned his use of administrative leave to volunteer as a mediator in a non-federal court.
In October 2013, the Human Resources Liaison ("H1") notified the current Commanding Officer ("CO") that Complainant's volunteer mediation during government time may be in violation of Agency regulations and policy. H1 became aware of Complainant's monthly volunteer arrangement through a Union official that asked her to research another employee's request to use administrative leave to volunteer as a guardian ad litem in court. H1 determined neither endeavor should be sponsored by the Agency after speaking with Agency counsel and reviewing Agency policy, and regulations from the Office of Personnel Management ("OPM"). Complainant interpreted H1's inquiries into his volunteer work as an attempt to retaliate against him for naming her in an EEO Complainant filed in December 2011 (Agency No. DON 126832200067), which at that point was pending before the Merits Systems Protection Board ("MSPB"). According to Complainant, H1 would recognize his name because as a result of his Complaint, the Agency conducted a "Management Inquiry of NETPDTC N3 Hiring Practices" focusing in part on H1 in January 2012.
Complainant emailed CO, explained that H1 was attempting to retaliate against him, and asked her to reauthorize his administrative leave. When she failed to do so, Complainant filed the instant complaint, arguing that CO facilitated H1 by ignoring his concerns about retaliation and rescinding his administrative leave based on biased information provided by H1.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. On March 9, 2015, the Agency submitted a motion for a decision without a hearing, which the AJ granted, over Complainant's objections. The AJ issued a decision by summary judgment in favor of the Agency on April 13, 2015. Then the Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
Complainant was "Aggrieved"
The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). For claims or reprisal, the claimed adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) citing Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000).
The AJ dismissed Complainant's complaint for failure to state a claim, erroneously determining that Complainant did not establish that he was "aggrieved." We find that rescinding approval for 4 hours per month of administrative leave, previously approved by the Acting Commander and allowed to continue by two subsequent Commanders for a total of 7 years, sufficient to render Complainant "aggrieved" under our statutes. Hence Complainant states a claim of discrimination on the basis of reprisal.
Disparate Treatment Analysis
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency provided four legitimate nondiscriminatory reasons for its action. As CO explained, "such a sponsorship is not in the best interests of the Command; is not the best use of Command resources; is contrary to OPM, DOD, and OPNAV guidance; [and] has no relationship to the Command's mission." CO's rationale is based on thorough research, including discussions with the Office of General Counsel at NETC and regulations issued by the Joint Ethics Committee. Specifically, she cites Joint Ethics Regulation 3-211(Logistics Support to Non-Federal Entities), 5 CFR 2635.705 (Use of Official Government Time), which she states would allow the Agency to use government resources for non-federal entities so long as it "did not interfere with performance of duties or detract from readiness; and if able and willing to provide same support to comparable events." Based on these considerations, combined with her conversations with H1 and other Agency experts about DOD and OPM policy and regulations, and the Agency's Community Service Program Guide, CO determined that "paying an employee to do volunteer efforts was not appropriate." Both CO and Complainant's supervisor testify that none of their employees other than Complainant are provided with administrative leave for personal volunteer projects outside of work. Complainant has not provided any convincing argument that CO's application of the law is discriminatory.
We also find that CO acted within her authority as Commanding Officer. She explained that if "I was going to be impartial to all employees in the Command, I would have to grant others the ability to conduct volunteer efforts on government time," which based on manpower constraints, including furloughs and sequestration, would not be the best use of Agency time and resources. CO notes in her affidavit that the February 17, 2006 letter signed by the Acting CO, while granting Complainant Agency sponsorship for his volunteer mediation, also stated that the command would review its level of support "as appropriate." CO also spoke with the Acting CO and learned that she did not consult legal counsel before approving Agency sponsorship, and she never intended the arrangement to be permanent. Significantly, her rationale was based on circumstances that have since changed, given the manpower constraints in 2013. Again, Complainant has not provided any additional evidence or argument to show that these reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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