0720120006
09-19-2013
Kimberly Moreland, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Kimberly Moreland,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0720120006
Hearing No. 443-2010-00129X
Agency No. HS-09-FEMA-00461
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the Agency's appeal, pursuant to its September 29, 2011, final order. For the following reasons, the Agency's final order which did not fully implement the Administrative Judge's (AJ) decision which found discrimination is REVERSED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Disaster Assistance Employee (DAE). She resided in Beaumont, Texas. On June 8, 2009, Complainant was deployed to Cedar Rapids, Iowa to serve as a Voluntary Agency Liaison (VAL). This position required her to go into the community and work with local organizations, churches, and community groups to establish long-term community resources groups. Complainant was given permission to drive from her location in Texas to Iowa because she did not like to fly. The trip to Iowa took 19 hours. Once she arrived she joined A-1, her supervisor, the Branch Director (BD), and C-1, a new hire. She toured the 16 counties in northern Iowa that she was assigned and requested that she be allowed to stay at a hotel in Waterloo. The supervisor approved her request.
Thereafter, A-1 informed the BD that Complainant would be staying in Waterloo. The BD believed that the driving time from Waterloo to northern Iowa was too great as some of Complainant's assigned areas were an hour and a half away. The BD decided that Complainant could not stay at Waterloo. A-1 informed Complainant of the BD's decision. Complainant expressed her concerns with the other locations offered to her. She indicated that she feared for her safety because of the lack of African Americans in the northern Iowa locations. A-1 and the BD checked with local security and determined that there was no ongoing threats.
On June 22, 2009, Complainant met with A-1 and the BD and was told that it would be best for the mission if she stayed near the communities that she was assigned even if that meant that she would have to change hotels every other day. Complainant discussed her displeasure of this approach. She indicated that she had a lot of luggage and that this would be very inconvenient. Complainant maintained that changing hotels frequently would require as much downtown as driving to her territories. Complainant was told that the Agency's mission required her to move to a new hotel. During this conversation, Complainant contends that the managers became demeaning and harassing. Complainant was told that her refusal to move from hotel to hotel would be considered a self release. Complainant became upset and walked away.
Moments later, Complainant told A-1 that she would move from hotel to hotel as was requested. Complainant also sent an email that night explaining that although she had become upset, she fully intended to complete her mission. Nevertheless, the BD told A-1 to send Complainant back to Texas. The BD indicated that she believed that Complainant wanted a self release. According to Complainant, she was sent back to Texas against her will.
Complainant contends that C-1 (White, female) was treated more favorably than she was because she was allowed to stay at the Waterloo hotel and she was given an easier territory than Complainant. The Agency explained that, as an experienced VAL, Complainant was capable of handling the more demanding northern area, which did not have as much of a history with long-term community resource programs.
On June 23, 2009, the Agency issued Complainant's performance evaluation. Complainant was rated as unsatisfactory. She received unsatisfactory ratings in two categories: dependability and cooperativeness. Complainant would have received a satisfactory performance evaluation had she not been rated so poorly in these two areas. Complainant maintained that she had never been counseled regarding any problems with her work. The Agency did not give any examples or explanation as to how Complainant had failed these categories.
Additionally, when Complainant arrived back in Texas, management refused to sign her travel time sheet. She was told that she would only be allowed eight hours for her travel from Texas to Iowa. The Agency also indicated that Complainant violated the Agency's overtime policy. Complainant changed her travel time to eight hours and her travel time sheet was approved.
On August 8, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:
1. On June 22, 2009, she was not allowed to stay at a hotel closer to the communities she was assigned, while similarly-situated employees were afforded this accommodation. In addition, she alleged that when she expressed concern over her accommodation, management officials spoke to her in a harassing, unprofessional tone.
2. On June 23, 2009, she was demobilized, and her departure was falsely categorized as a self-release.
3. On June 23, 2009, management officials made her feel uncomfortable by looking over her shoulder and following her through the building while she was processing out.
4. On June 23, 2009, she received an unsatisfactory performance rating.
5. On June 23, 2009, management forced her to change her travel time on June 8, 2009, from 19 hours of travel to 8 hours.
6. Beginning June 8, 2009, until she was released on June 23, 2009, she was not allowed to perform the duties for her deployment, while similarly-situated Caucasian employees were allowed to perform their duties.
Following an investigation, Complainant requested a hearing before an EEOC Administration Judge (AJ). The AJ held a hearing and found that Complainant established that she was discriminated against based on her race when: (1) she was demobilized and directed to return to Texas; (2) she received an unsatisfactory performance rating; and (3) she was forced to change her travel time from 19 hours of travel to 8 hours of travel.
The AJ found that the Agency's articulated legitimate, nondiscriminatory reasons for its actions were not credible. Specifically, the AJ found that management was aware that Complainant had not self-released based on her numerous attempts to explain that she would stay and complete her assignment. As such, management's argument that she had self-released was not truthful. Further, the AJ found that the Agency's argument that Complainant earned an unsatisfactory performance appraisal was not supported by the record, as Complainant had never been counseled and there were no incidents presented which showed that she was not dependable. Finally, the AJ noted that the Agency's argument that it was more favorably for the Agency for Complainant to fly and therefore she should have been compensated at that rate was also not credible because, prior to leaving for Iowa, Complainant received approval to drive. The AJ found that the Agency was surely aware that the trip would take longer than 8 hours.
Accordingly, the AJ found that Complainant established that she had been subjected to discrimination on the basis of race. The AJ ordered back pay, a correction to her performance appraisal, $5,000 in non-pecuniary compensatory damages, and attorney's fees.
CONTENTIONS ON APPEAL
The Agency contends that the AJ erred in making a finding of discrimination. The Agency argues that Complainant failed to establish a prima facie case of discrimination as she failed to show that a similarly situated employee not of her protected bases was treated more favorably. The Agency explains that the comparator offered by Complainant was a new hire who was treated more favorably because she had less experience and needed more supervision.
The Agency maintains that without establishing a prima facie case, Complainant could not prove pretext. The Agency further contends that it had justifications for releasing Complainant from her assignment, giving her an unsatisfactory rating and for denying her travel time. Finally, the Agency asserts that Complainant failed to show that the reasons it articulated for its actions were pretext for discrimination.1
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to REVERSE the Agency's final order. In this regard, we do not find that the AJ erred in finding that Complainant established a prima facie case of discrimination based on race. The AJ's determination was not based solely on the comparator noted by Complainant, C-1. The AJ also noted the fact that Complainant put forth sufficient evidence to create an inference of discrimination, e.g., her race, the fact that she was subjected to several adverse actions, the fact that the Agency misstated the reason that Complainant left Iowa, the fact that the Agency provided no support for its assertion that she was uncooperative and undependable; and the fact that Complainant established that the Agency violated its travel policy with respect to her. By combining all these factors with the fact that Complainant was treated differently than C-1, we find substantial evidence exists to support the AJ's finding of a prima facie case of race discrimination. We also find that (1) there is substantial evidence to support the AJ's finding that the Agency's articulated reasons for its actions were pretext, and (2) other than the Agency's conclusory statements it has offered no persuasive evidence to show that the AJ's decision was incorrect. Accordingly, we find that the Administrative Judge's ultimate finding that unlawful employment discrimination was proven by a preponderance of the evidence is supported by the record.
ORDER
Within one hundred and twenty (120) days of this decision becoming final, the Agency is ordered to take the following action:
1. The Agency shall determine and pay Complainant back pay (with interest, if applicable) and other benefits due Complainant pursuant to 29 CFR 1614.501, no later than 60 calendar days after this complaint becomes final. The Agency's determination shall be based on the fact that absent discrimination, Complainant would have been deployed to Iowa for as long as the new hirer was deployed and would have received all benefits to which an employee who performed in a fully successful manner was entitled.
2. Complainant's performance evaluation shall be amended to reflect that Complainant performed in a fully satisfactory manner during her deployment to the Iowa disaster.
3. The Agency shall pay Complainant $5,000.00 in non-pecuniary compensatory damages.
4. The Agency shall immediately take corrective action to ensure such discriminatory actions by and from its supervisors, managers, and all other staff involved in decisions affecting employment, will not recur, including providing 8 hours of mandatory training to A-1 and the BD on the rights of employees under Title VII, the obligations of management and personnel staff to insure that those rights are protected, and the possible relief (both disciplinary by the Agency and statutorily from the Commission or the courts) available to such employees against management or personnel staff who discriminate.
5. The Agency shall consider taking appropriate disciplinary action against A-1 and the BD. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the EEOC compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall provide documentation of their departure date(s).
6. The Agency shall post the enclosed notice, pursuant to the paragraph below entitled, "Posting Order."
7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0900)
The Agency is ordered to post at its Federal Emergency Management Agency, Cedar Rapids Area Field Office, located in Cedar Rapids, Iowa copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
____9/19/13______________
Date
1 Although Complainant filed a "notice of appeal," upon examination it appears to be an opposition to the Agency's appeal not a separate appeal by Complainant regarding any aspect of the AJ's decision.
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0720120006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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