0120133039
10-15-2015
Lois G.,1 Complainant, v. Beth F. Cobert, Acting Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lois G.,1
Complainant,
v.
Beth F. Cobert,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 0120133039
Hearing No. 430-2011-00245X
Agency No. 2011003
DECISION
On August 15, 2013, Complainant filed an appeal from the Agency's July 10, 2013, final order concerning her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Investigative Assistant at the Agency's Federal Investigative Services Division facility in Virginia Beach, Virginia.
On December 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (lupus), and reprisal for prior protected EEO activity when:
1. on October 29, 2010, Complainant received a minimally acceptable performance appraisal; and
2. on December 7, 2010, Complainant received a letter of reprimand.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on April 4, 2013, and issued a decision on April 23, 2013. The AJ found that Complainant failed to establish a prima facie case of reprisal because her supervisor (S: Caucasian, no claimed disability) was unaware of Complainant's prior EEO activity. The AJ further found that Agency officials articulated legitimate non-discriminatory reasons for the disputed actions - namely that Complainant was repeatedly tardy without calling in, was inconsistent completing her work, and was rude to other employees. The AJ found that Complainant failed to establish that such articulated reasons were a pretext to mask discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. With regard to the performance appraisal, S testified that Complainant's "workload management" were rated "minimally successful" because:
Quite a few of the agents, each pay period their time was entered incorrectly into the time report. And when I would go to certify them, I would catch errors and basically have to redo them, and that was happening quite a bit. You know, I really couldn't count on it to be correct, and I was spending a lot of my time on Monday redoing -- you know, redoing the ones that had to be redone. Going back in, making sure it was adjusted correctly. We were also receiving case closed messages that should be filed -- the cases should be filed and destroyed by the end of the week. That wasn't getting done. They were backing up. Also, we had correspondence from the vehicle officer from GSA that, you know, requests and e-mails that we needed to follow up on weren't followed up on in a timely manner by when the deadline was. There was some issues [sic] where -- we receive cases in the mornings that sometimes are very priority cases. It may be Congressional staff or, you know, White House staff, or just a priority for some reason. So we like to get the download or the print work done early in the mornings because we want to get that in the hands of an agent pretty quickly so they can factor it into their day and get it done. So we like the cases to be assigned no later than 11:00 or 12:00, you know. There were occasions when I came back in after lunch or, you know, 2:00 or 3:00, and they hadn't been assigned. ... There was one occasion, you know, I recall specifically, that an agent called and said, "What happened to that case you were assigning me? I didn't get it." And so [Complainant] was off the next day. She was ill or something. We couldn't find it. We didn't know if it had been assigned or not. Then we ended up finding a stack of cases that should have been assigned before -- the day before and hadn't been assigned and, of course, she was out sick, you know. So that was happening on a regular basis.
Hearing Testimony, p. 257-58.
S further testified that she rated Complainant "minimally successful" in the category of "professionalism" because:
It was very apparent to me that we were having a problem with professionalism, with treating people with respect, with being courteous to agents, courteous to other SAICs, courteous to other IAs, you know, having a professional relationship with these people that, you know, was positive and a good environment to be in. Also, as far as, you know, the public, when they would call on the phone, there were occasions I would take over a phone call because I felt like it might have been going offbeat and wasn't presenting an image that I would think would be appropriate for [the Agency] and for what I expected to be a professional involvement with the public. When I would speak with [Complainant] about these things, the sessions or the conversations would go off course and become unprofessional. Any constructive criticism that I gave was basically not accepted well and became -- you know, often she became argumentative and defensive. And so I had -- it was difficult to -- it was difficult to discuss with her improvements in, you know, areas that we could help her succeed. And I had had several complaints from agents that they were not being treated respectfully. I had a SAIC that came -- actually twice, two different SAICs came to me and felt that they weren't being treated appropriately. The other investigative assistant would go to her SAIC and express concerns about the work environment and, of course, that SAIC would come to me and complain that her Investigative Assistant, you know, was not being treated well, and they wanted that to change, too. So it was kind of across the board, you know. It was not just one person, you know. It was me that was experiencing it, it was other SAICs, it was the other IA, and agents, too. So that's, you know, why I rated her that way.
Id., pp. 261-63.
With regard to the letter of reprimand, the letter stated that Complainant was being reprimanded for "repeatedly failing to follow instructions and tardiness. Specifically, you have continued to come in past your 9 am start time without notifying me as you were instructed." Report of Investigation (ROI), Exhibit O-9. The letter went on to detail numerous instances when Complainant arrived at work after 9 am without notifying her supervisor. See id.
The Agency having articulated legitimate non-discriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext for discrimination. See Burdine, 450 U.S. at 252-53. Following a review of the record we find that Complainant has not met this burden.
Complainant maintains that, with regard to her performance evaluation, S had never warned her prior to receiving the rating that there were any problems with her performance, attendance, or rudeness. See Hearing Transcript, pp. 100-04. With regard to her tardiness, Complainant denied that she failed to call in whenever she was going to be late. See id., pp. 110-11. Complainant further maintains that on a number of the days in question, she took annual or sick leave to cover her absences. See Exhibit G-5. The record shows, however, that Complainant had been notified that any leave requests had to be made in advance, see Exhibit 0-12, and Complainant has not shown that the leave she took on the dates in question were made in advance. We note that, on appeal, Complainant argues that the Agency failed to provide evidence to support the letter of reprimand and the personnel evaluation. Such an argument, however, ignores the fact that it is the Complainant who bears the ultimate burden of establishing, by a preponderance of the evidence, that discrimination occurred. Whether or not Complainant was counseled beforehand concerning her performance and/or attendance, Complainant has not shown that the Agency's articulated reasons for its actions were a pretext to mask discrimination. Nor has Complainant shown that the Agency's actions were motivated by animus against Complainant's protected bases. We therefore discern no basis to disturb the AJ's findings.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred, and we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants 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
October 15, 2015
__________________
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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