0120150792
11-07-2017
Louise S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Louise S.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150792
Hearing No. 420201300113X
Agency No. 126832200780
DECISION
Complainant timely filed an appeal pursuant to 29 C.F.R. � 1614.403(a) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Assistant, GS-07, at the Naval Education and Training Professional Development Center ("NETPDC") at Saufley Field in Pensacola, Florida.
Complainant began reporting to S1 as her first level supervisor in March 2009. She was scheduled for specific "core" hours, but could notify S1 in instances when she was running late, and make up the time by requesting leave hours or applying "credit" hours, reflected on her time sheet. Complainant was responsible for completing and submitting her timesheet to S1, who would certify it and submit it to payroll. When Complainant forgot to record leave or credit time or did not include the correct arrival time, S1 would not certify her timesheet and instead request corrections, a process Complainant describes as the "normal process for ensuring accuracy." However, S1 became concerned by how Complainant "consistently" submitted erroneous time sheets that she had verified as being correct. In 2010, at the advice of the NETPDC Manpower Management Division ("HR"), which S1 contacted after more than a year of correcting Complainant's time sheets, he started drafting Memoranda for the Record ("MFR") as "a tool" to "use in recalling events should the need arise."
On or around October 12, 2010, Complainant became aware that S1 recommended six of his direct reports, not including her, for On the Spot ("OTS") awards. OTS awards of up to $750 per employee were issued each quarter, to recognize employees for achievements that went "above and beyond" their usual job responsibilities. Believing her achievements also warranted an OTS award, Complainant filed an EEO complaint alleging, among other things, that she was not recommended for an OTS out of retaliation for filing an EEO complaint in November 2009, naming S1 as a responsible management official, after she was not selected for a position she applied for within the office. Agency Complaint No. 11683220032 ("Complaint 1"). Her complaint was investigated and Complainant requested a hearing. The EEOC Administrative Judge (AJ) found no unlawful retaliation was proven, a conclusion affirmed by this Commission on appeal. See EEOC Hearing No. 420201200007X; EEOC Appeal No. 0120142632.
However, during the investigation into Complaint 1, S1 provided the EEO Investigator with 7 MFRs, six from 2010, and one from February 2, 2011. Complaint 1 was already pending a hearing when, on December 11, 2011, Complainant discovered the MFRs while reviewing the investigative file. Believing the MFRs contained false and slanderous statements about her and that they were motivated by retaliation, Complainant attempted to amend Complaint 1. When the AJ denied her request, Complainant filed a new EEO complaint on March 20, 2012, alleging, among other things, that "Agency officials, based on [her] protected activity, maintained [MFRs] pertaining to alleged performance issues," which it included in her EEO complaint record. Agency Complaint No. 126832200790 ("Complaint 2"). The Agency dismissed Complainant's complaint on procedural grounds, for failure to state a claim. Complainant appealed to this Commission, which reversed the dismissal. See EEOC Appeal No. 0120122234.
On remand the Agency investigated Complaint 2, and Complainant requested a hearing. However, the AJ assigned to hear Complaint 2 again dismissed it for failure to state a claim. Complainant again appealed and the dismissal was reversed and Complaint 2 was remanded again for a hearing. See EEOC Appeal No. 0120133389.
On this remand, prior to the hearing itself, there was some debate about the framing of the claim.
On July 25, 2014, the AJ who had been assigned the case issued the following "Statement of the Issue" Order, effectively reframing Complainant's remanded complaint:
Upon reviewing the Office of Federal Operations [("OFO")] Decision dated March 6, 2014, the Administrative Judge finds that the issue for adjudication should be framed as follows: Whether or not Complainant was discriminated against based on reprisal [for prior EEO activity] when [S1] maintained memoranda for the record containing allegedly slanderous and defamatory information concerning Complainant's performance and conduct which resulted in her being treated differently than similarly situated employees, when she did not receive an on the spot award. (Emphasis added).
Complainant contested the AJ's Statement of the Issue. She explained that the OTS award was the subject of a previously filed complaint (Complaint 1) pending a hearing before another AJ. She also reminded him that she never raised the OTS award as a claim within the instant complaint, arguing that its inclusion would change and undermine her existing reprisal claim.
The record shows the AJ resolved the conflicts concerning the framing of Complainant's claim immediately prior to the hearing on August 28, 2014. Specifically, the AJ told Complainant, "I want to make a record and whatever you believe the issue to be, that is the one that we're going to proceed with." HT 8:19-23. Then, the AJ offered, based on Complainant's emails, the following revised Statement of the Issue:
Whether or not Complainant was subjected to reprisal, when [S1], maintained memoranda for the record containing allegedly slanderous and defamatory information concerning Complainant's performance and conduct? HT 10:4-9.
Complainant and the Agency both agreed to this framing, and the Agency Counsel noted that it was consistent with our previous decision. HT 10:11-17.
On October 15, 2014, after holding a hearing, the AJ found that Complainant had not proven she was subjected to unlawful retaliation as alleged.
In reaching the conclusion that the MFRs were created and maintained for legitimate reasons and did not result from retaliatory animus, the AJ recounted the following evidence:
The only individuals Complainant knew of who were aware of the MFRs were in her supervisory chain. The MFRs did not address Complainant's work performance and did not result in any disciplinary action. Rather, they all concerned Complainant's timeliness and reported errors in her leave slips and time sheets submitted to S1. The MFRs reflected that S1 "had a problem with Complainant keeping accurate time records" for payroll purposes, a problem he did not have with other employees, including that she routinely arrived to work after 08:30, which is "after core hours" and did not always notify S1 if she was running late. Ultimately, Complainant testified that the "substance" of the MFRs was true, but they reflected everyday incidents. To her knowledge, Complainant was unaware of any other time she had been the subject of an MFR in over 30 years of employment at the Agency.
On December 16, 2014, the Agency issued a Final Order adopting adopted the AJ's finding, and this appeal 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).
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). Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency succeeds, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his or her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
For reprisal claims specifically, and in accordance with the burdens set forth in McDonnell Douglas, Hoch Stadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Kristy E. v. Dep't of the Interior, EEOC Appeal No. Appeal No. 0720120037 (Oct. 31, 2013) citing Whitmore v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
However, where, as here, 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 (Jun. 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The AJ determined that "the Agency... articulated a legitimate non-discriminatory reason for issuing Complainant the MFRs at issue - i.e., it sought to correct her unacceptable conduct in the submission of her erroneous time sheets." S1 explains in the record that he began maintaining the MFRs on the advice of HR, who he contacted because of this conduct. Complainant acknowledges that the MFRs correctly reflect her timekeeping errors and instances where she failed to notify S1 that she would be arriving after "core hours."
For instance, S1's August 13, 2010 MFR states:
[A]t 0630 I attempted to certify [Complainant's timesheet] only to notice that she had committed a myriad of errors logging in her time. Errors included failure to log seven hours of sick leave used claiming 3.5 hours of credit time earned that was actually credit time spent and logging her arrival time at 0830 on one occasion which she actually arrived at 0900. I reported these errors to her and she corrected them and verified her time. Since becoming her supervisor in March 2009, [Complainant] consistently submits erroneous time sheets that she has verified as correct... Only after I point out her mistakes does she submit an accurate time sheet. It is usually just one or two mistakes, but this one is especially bad.
Complainant explained that in that payroll "wasn't accustomed to using credit time and credit time earned." However, she does not refute the prevalence of errors in her time sheet.
Our reading of S1's MFRs within the context of the record and Complainant's testimony, reflects divergent expectations between S1 and Complainant on everyday work-related issues of timeliness and recordkeeping, rather than any retaliatory animus. Complainant testified that it was "normal" for her to come in after 0830, and she made sure that S1 knew when she was in the office, as she had contact with S1 "throughout the day" and would park her car in a space that was visible from his office window. Conversely, as stated in several MFRs, S1 expected Complainant to arrive by 0830 or notify him when she would be in. S1's May 13, 2010 MFR states that he required her assistance reprinting an exam and certificates for a conference at 0855 and she did not arrive until 0955. Afterward, S1 "met with [Complainant] to discuss proper procedures, and reminded her that if she were going to arrive at work after core hours, that she had a responsibility to call [him] to let [him] know of her expected arrival time." Following this conversation, the record contains a number of emails from Complainant to S1 notifying him when she would arrive after 0830, although another MFR reflects S1's dissatisfaction when she had a colleague inform him she was running late instead of notifying him directly.
In arguing that the MFRs were pretext for unlawful retaliation, Complainant maintains that the actions described in the MFRs were "normal daily activity," so by going to HR and writing the MFRs, S1 treated her as though she was a "problem employee," harming her reputation. Thus, she argues that while substantively true, the MFRs were defamatory and constituted "reprisal... not the wording, but the way that they were presented." She cites how S1 submitted the MFRs as evidence of "performance issues" for her prior EEO complaint and that S1 "gave [the MFRs to her] upper level management and portrayed a bad performance and character to [her]." Notably, Complainant does not dispute that S1, as her supervisor, was accountable for submitting accurate timekeeping records of his direct reports to payroll, making the subject of the MFRs within the scope of his authority and concern. She also does not dispute S1's explanation that a disproportionate majority of the MFRs focused on Complainant because Complainant was the only one of S1's direct reports to consistently submit incorrect time sheets and fail to communicate when she would arrive after core hours. Essentially, Complainant's only evidence of pretext for discrimination are her own statements interpreting S1's actions. We find Complainant has not met the "substantial evidence" threshold necessary to show the AJ erred when, after a hearing, he concluded she did not prove that S1's legitimate nondiscriminatory reason for maintaining the MFRs was pretext for unlawful retaliation.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision adopting the AJ's decision that no retaliation was proven.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
November 7, 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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