[Redacted], Hailey T., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021003764 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hailey T.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003764 Agency No. BOP-2019-01013 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 18, 2021 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Services Assistant, GS-0303-07, at the Agency’s Federal Correctional Complex in Tucson, Arizona. On May 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (depression, anxiety, Post-Traumatic Stress Disorder) and in reprisal for prior protected EEO activity when, on July 5, 2019, Complainant became aware that Human Resources/Payroll did not inform her that her pay had been adjusted resulting in a pay 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. 2021003764 2 deficit to be forwarded to collection. Additionally, that same day, Complainant became aware that management had not approved her time off award (TOA).2 Complainant argues that the instant claim arose following her entry into a settlement agreement with the Agency in December 2017, regarding alleged harassment by her supervisors. In June 2018, Complainant claimed that she was further harassed and, on July 17, 2018, Complainant left work in the middle of the day. After leaving, Complainant then asked to use annual leave for the remainder of the day, and to use an eight-hour TOA to cover the next day’s absence. On July 17, 2018, Complainant’s direct supervisor (S1) denied her request. In a contemporaneous memorandum, S1 wrote that Complainant’s request was denied on the grounds it was not made in advance and because Complainant left the facility without notifying a supervisor. Complainant’s physician placed her on medical leave until she gained employment with another Federal agency in October 2018. During this period, Complainant used a combination of accrued leave and leave without pay (LWOP). The record contains Complainant’s timesheets from July 8, 2018, until October 13, 2018. A review of these timesheets reveals that on Monday, July 9, 2018, Complainant worked for three and a half hours, then used four and a half hours of annual leave. Complainant worked for three days before taking sick leave on Friday, July 13, 2018. Complainant worked the following Monday and most of Tuesday, July 17, 2018, before being absent without leave (AWOL) for two and a half hours, along with eight hours on Wednesday, July 18, 2018. Complainant used 16 hours of sick leave the remainder of that week. Complainant was on sick leave the entirety of Pay Period 15 and most of Pay period 16, from July 22, 2018, to August 13, 2018. To utilize sick leave during Pay Periods 15 and 16, the Agency advanced Complainant 75 hours and 15 minutes of sick leave. The remainder of Pay Period 16 consisted of annual leave. Beginning August 19, 2018, Complainant was in LWOP status despite having 71 hours and 15 minutes of annual leave balance and eight hours TOA, and continued in LWOP status until October 13, 2018, when she departed the Agency. The record also includes emails between Complainant and her supervisors discussing her use of leave. On August 30, 2018, Complainant requested advanced sick leave and explicitly stated that she does not wish to use her annual leave or TOA. Complainant added in a subsequent email that she did not want to use TOA “for any upcoming time because it should have been used in July . . . but was denied without explanation.” On June 24, 2019, the Bureau of the Fiscal Service with the U.S. Department of the Treasury, issued Complainant a letter. The letter indicated that Complainant owed the U.S. Government $234.39. Complainant received the letter in July 2019, contends that the bill had already been sent to collections, and that her credit score was adversely affected. 2 The Agency dismissed several additional claims for untimely EEO Counselor contact. Complainant raised no challenges regarding these matters and the Commission can find no basis to disturb the Agency’s dismissal decision. 2021003764 3 Complainant speculated that the deficiency resulted because the Agency did not allow her to use the TOA. According to Complainant, after S1 did not approve her use of the TOA, the Agency placed her on Absence Without Leave (AWOL) status for July 18, 2018 and said that they would adjust her leave status if Complainant provided sufficient documentation from her physician. When her leave status was adjusted, S1 placed Complainant on LWOP. Complainant later admitted that she “can only speculate” that she was paid for a day when the Agency could have used her leave balances. According to Complainant, “somewhere along the way I was essentially paid for that day, but [the TOA] was never applied, and by not applying it, it created a deficit.” In an undated document, the Agency explained that Complainant was in LWOP status between August 20, 2018, and October 12, 2018. The Agency noted that “Paid Holiday Time off” was entered for Complainant on September 3, 2018, presumably for the Labor Day holiday. However, because Complainant was in LWOP status immediately before and after Labor Day, Agency regulations rendered Complainant ineligible for paid holiday time. Therefore, a correction was made to Complainant’s time on October 1, 2018, which generated a bill for $145.32. “Since [Complainant] separated from the bureau, the National Finance Center generates the bills and will send them directly to the address she had on file.” The Agency provided Complainant’s timesheet for Pay Period 18, which encompassed September 3, 2018. On September 14, 2018, the timesheet reflects that Complainant was paid for the Labor Day holiday. On October 1, 2018, the timesheet was corrected to remove payment for that day. A Human Resources official (HR1) explained that the Agency adjusted Complainant’s pay several times because Complainant took a series of paid and unpaid leave, some of which was retroactively granted. HR1 asserted that the Agency had nothing to do with generating the debt. HR1 also said the Agency could not resolve the pay discrepancy with Complainant until she returned to duty status, which she did not do until she transferred to another agency. As a result, the matter became the responsibility of the National Finance Center. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected her to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the pay deficiency resulted from the Agency’s failure to allow her to apply the TOA in July 2018. Complainant asserts that her final timesheet with the Agency demonstrated that the TOA was still available for use. Complainant argues that the TOA should have been applied to address the pay deficiency. Accordingly, Complainant requests that the Commission reverse the final decision. 2021003764 4 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In this case, as more fully described above, the Agency articulated legitimate, non-discriminatory reasons for the pay deficiency. The Agency accidentally paid Complainant for the Labor Day holiday, when she should not have been eligible due to her non-pay status. The Agency would have corrected the deficiency, but Complainant never returned to the Agency in a duty status. Further, Complainant’s TOA request was denied because Complainant failed to request it in advance as required by Agency policy. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant speculates that the Agency should have used her TOA to cover the deficiency. However, Complainant’s speculation does not give rise to discriminatory animus. As we have said before: the focus of a pretext analysis is on whether the Agency’s actions were motivated by discriminatory animus. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in 2021003764 5 judgment. Nor is it enough for a complainant to disagree with or question the Agency's actions. A complainant must show that discrimination was the real reason for the Agency's actions. He has to provide evidence and facts that would enable a fact finder to conclude that the reasons given by the Agency are a sham to cover up its real and unlawful motive. Complainant v. Dep’t of Housing & Urban Develop., EEOC Appeal No. 0120140517 (Oct. 21, 2016). Further, Complainant’s argument is contradicted by the record evidence. The Agency’s actions with respect to Complainant’s TOA in July 2018 have nothing to do with the principle that an employee in LWOP status cannot be paid for a holiday during the LWOP period. Also, at the time, Complainant expressly disclaimed any desire to use annual leave or TOA because she believes the TOA should have been allowed in July 2018. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2021003764 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003764 7 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 September 6, 2022 Date