0120100330
07-18-2012
Regina V. Taylor, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Regina V. Taylor,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100330
Hearing No. 120-2005-00129X
Agency Nos. DON-04-63393-053, DON-05-63393-00887
DECISION
Complainant filed an appeal from the Agency's final order dated September 4, 2009, finding no discrimination with regard to her complaints. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
The record indicates that Complainant filed her first complaint, Agency No. DON-04-63393-053, dated April 7, 2004, alleging discrimination based on race (African-American) and in reprisal for prior EEO activity when:
(1) Management failed to upgrade her position from a Budget Analyst, GS-11, to a Budget Officer, GS-12, when she was performing GS-12 level duties, and on March 2, 2004, management took the lead duties out of her position description to ensure that she would not be promoted to the GS-12 level;
(2) On April 9, 2004, a member of management threatened, in the presence of another employee, to write her up for insubordination;
(3) Her supervisor responded in a short and hostile manner; and,
(4) Her supervisor assigned her additional work assignments with unreasonable and/or conflicting due dates in an attempt to set her up for failure.
Complainant filed her second complaint, Agency No. DON-05-63393-00887, dated May 16, 2005, alleging discrimination based on race (African-American), color (black), and in reprisal for prior EEO activity when:
(5) She was subjected to a hostile work environment by her supervisor and rather than retiring in 2008, she accepted an early retirement in April 2005; and,
(6) Between December 1, 2004, and April 1, 2005, she was subjected to at least six instances of disparate treatment with respect to her retirement, including:
(a) On December 20, 2004, her supervisor told her that he would not be taking part in her retirement ceremony because she had filed an EEO complaint against the Command;
(b) On March 11, 2005, the supervisor informed her that she would not be receiving a Meritorious Civilian Service Award (MCSA) at her retirement ceremony, but would be presented a Letter of Appreciation;
(c) On March 11, 2005, she requested a meeting with the Admiral, Naval Safety Center, to discuss the promised MCSA, but was not granted an appointment until March 24, 2005, and the appointment time she was given conflicted with her off-site retirement ceremony;
(d) On March 30, 2005, she was required to take 1.5 hours annual leave to prepare for her retirement ceremony;
(e) On April 1, 2005, no managers from her chain of command were in attendance at her retirement ceremony; and,
(f) On April 1, 2005, she and her guests were limited to "59 minutes" leave to attend her ceremony, while the last civilian employee retiring used up to 2.5 hours and was not charged leave.
The record indicates that at the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision finding no discrimination without a hearing. On July 26, 2006, the Agency issued its final order fully implementing the AJ's decision. Upon Complainant's appeal, the Commission, in EEOC Appeal No. 0120064943 (May 22, 2008), vacated the Agency's final order and remanded the alleged matters for a hearing. Accordingly, a new AJ was assigned and after a hearing the AJ issued a decision on August 17, 2009, finding no discrimination, which was implemented by the Agency in its final order.
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, � VI.B. (November 9, 1999).
In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. The record indicates that during the relevant time period at issue, Complainant was employed as a Budget Analyst, GS-0560-11, at the Naval Safety Center in Norfolk, Virginia.
With regard to claim (1), the AJ noted that Complainant's former supervisor, who retired in December 2003, tried to upgrade Complainant's position by rewriting her position description and submitting that to the Human Resources Office (HRO) for an Accretion of Duties to a Budget Officer, GS-0560-12. The HRO conducted a classification review and determined Complainant's position was properly graded as a GS-11. Thereafter, on January 12, 2004, a new supervisor became Complainant's supervisor and she requested a position upgrade again. The supervisor told her that he would look into the request. However, on February 13, 2004, the supervisor informed Complainant that according to the HRO, her position did not warrant an upgrade. The supervisor stated that during the relevant time period, he changed the position descriptions of Complainant and two other employees to accurately reflect job duties. Specifically, the supervisor indicated that although Complainant's position description contained language, "serves as lead," she did not perform any lead duties; thus, he removed the term "lead" from her position description. The AJ stated that the Agency presented evidence that it did not have a Budget Analyst, GS-12 position within the Naval Safety Center; thus, there was never any discussion about upgrading Complainant to a GS-12 in their organization structure. Complainant claimed that prior to the former supervisor's retirement, she frequently acted for the former supervisor during her absences and was assigned to additional duties beyond her position description. The AJ, however, found that based on the Agency staff matrix, Complainant did not supervise any employees and, in fact, was on the same employment hierarchy as the Budget and Transportation Assistants, GS-6 and GS-7. The AJ added that according to a Supervisory Classification Specialist, Complainant could not have been placed into the GS-12 position because it was a new management position and she would be required to compete for the position.
With regard to claim (2), the acting supervisor stated that during the relevant time period at issue, he was acting for Complainant's supervisor. After he reviewed Complainant's work, he found some misspelled words and missing data. When he brought those to her attention, Complainant responded, "Is that all you've been doing all day?" Complainant does not dispute making the foregoing statement to the acting supervisor. The acting supervisor found the response rude and insubordinate but denied discriminating against Complainant. He acknowledged that he, in response to Complainant's foregoing comment, warned her that her behavior and mannerisms of questioning him were unacceptable and if she continued, he would subject her to discipline. There is no evidence that the acting supervisor actually disciplined Complainant.
With regard to claim (3), the supervisor and the acting supervisor denied speaking to Complainant in a hostile manner. The AJ noted that other employees testified that the supervisors were very direct communicators - very "to the point."
With regard to claim (4), the supervisor denied giving Complainant unreasonable or conflicting due date. The supervisor indicated that Complainant had a time management problem in that she conducted personal work on government time. Specifically, the supervisor stated that Complainant was late on at least two occasions and deadlines were extended to accommodate her tardiness. On appeal, Complainant does not dispute this nor does she argue that she was treated less favorably than a similarly situated employee under similar circumstances.
With regard to claim (5), the AJ noted that Complainant accepted a voluntary early retirement with $25,000 incentive. The AJ also noted that although the incentive package required recipients to retire by February 1, 2005, Complainant requested and was granted permission to retire, instead, on April 1, 2005, in order to complete her 35 years of service. There is no evidence that Complainant was forced to take an early retirement.
With regard to claim (6)(a), the supervisor stated that he declined to be the guest speaker because he did not know Complainant very well and did not have firsthand knowledge about her career or life accomplishment. He also indicated that he further declined to be the master of ceremonies because it was usually done by junior officers. The AJ noted that the supervisor did not participate in any retirement ceremonies. Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances.
With regard to claim (6)(b), the supervisor stated that he did not recommend Complainant for the MCSA because she did not warrant the award. On appeal, Complainant contends that a number of employees received the MCSA at the time of their retirements. However, the Agency indicates that Complainant's supervisor was not responsible for those awards and, further, Complainant failed to show that her supervisor had ever recommended anyone for the MCSA.
With regard to claim (6)(c), the AJ stated that there was no evidence that the Admiral or his secretary was aware of Complainant's scheduled retirement on March 24, 2005.
With regard to claim (6)(d), at the time of the alleged incident, Complainant called in indicating that she was not feeling well. Although she arrived at work between 10:00 - 11:00 in the morning, she was not charged leave. Complainant does not dispute this on appeal. Later, she was also allowed to leave work at 12:15 p.m. to go downtown until 3:00 p.m. in order to rehearse her retirement ceremony. Complainant was not charged leave during that time period either. Complainant also does not dispute this on appeal. When she returned, she told her supervisor that she wanted to take off the rest of the day. The supervisor approved the request of 1.5 hours annual leave.
With regard to claim (6)(e), the supervisor indicated that he did not attend Complainant's retirement ceremony because he was new to the position and he was saving his leave for his personal affair, i.e., moving into his home. Complainant's managers also could not attend Complainant's retirement ceremony because one was out of town on official work and one had just returned to the office from being away on business.
With regard to claim (6)(f), the AJ stated that the Agency admitted that Complainant and her guests were granted 59 minutes of leave to attend her retirement ceremony. However, since Complainant's retirement was more involved, her guests remained longer and none were charged additional leave. On appeal, Complainant does not dispute this.
Based on the foregoing, the AJ determined and we agree that Complainant failed to show that any of the alleged actions were objectively offensive, abusive or hostile, or otherwise taken in order to harass her. The Agency also determined and we also agree that there was insufficient evidence to support a finding of pretext. We find no indication that any incident in the complaint was motivated by discrimination as alleged. Upon review, we find that the AJ's factual findings of no discriminatory intent are supported by substantial evidence in the record.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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 (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 (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
7/18/12
__________________
Date
2
0120100330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100330