Teela D. Norris, Complainant,v.Gary Locke, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionDec 2, 2011
0120082613 (E.E.O.C. Dec. 2, 2011)

0120082613

12-02-2011

Teela D. Norris, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.




Teela D. Norris,

Complainant,

v.

Gary Locke,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120082613

Hearing No. 570-2007-00804X

Agency No. 075100031

DECISION

On May 22, 2008, Complainant filed an appeal from the Agency’s April

22, 2008, final decision 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). 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 Program Assistant, with the Agency’s Office of Administrative

Services, Office of the Chief Financial Officer and Assistant Secretary

for Administration, Office of the Secretary located in Washington, DC.

On January 20, 2007, Complainant filed an EEO complaint alleging that the

Agency discriminated against her on the bases of disability (anxiety and

stress disorder) and in reprisal for prior protected EEO activity when:

1. Unlike other personnel, she is treated differently with respect to

time and attendance, constantly placed on Absent without Leave (AWOL),

and she is given a hard time about requesting leave and is "put through

the run around" in spite of submitting supporting documentation such as

doctors' notes to support her leave requests. Complainant specifically

cited incidents occurring in pay period 14 in Fiscal Year (FY) 2004,

pay period 16 in FY 2004, pay period 19 in FY 2004, pay period 1 in FY

2005, pay period 10 in FY 2005, and pay period 16 in FY 2005.

2. On July 12, 2006, the Acting Chief, Travel Management Division, Office

of Administrative Services (S1), alleged that Complainant had ''bad [time

and attendance] habits" and a lengthy history of AWOL and suspensions

and explained that he had made "arrangements" with his predecessor (S0).

S1 further told her that S0 had concerns with her time and attendance

and planned to have a meeting to discuss the matter the following week.

3. On August 4, 2006, S1 denied a leave request previously approved by DC.

4. On August 11, 2006, she received a memorandum entitled "Counseling

for AWOL on August 8, 2006."

5. On August 24, 2006, S1 removed various travel related duties from

her position, stating that she was "not proficient enough to perform

these tasks."

6. On September 22, 2006, S1 made it mandatory for staff to report

to duty on the weekend of September 23-24, 2006 or be charged AWOL.

On September 24, 2006, Complainant requested that S1 approve her absence

for that day. However, S1 inquired in great detail about requirements

that would prevent her from reporting for duty.

7. S1 placed her on AWOL on September 29, 2006.

8. On October 3, 2006, her Family and Medical Leave Act request was

denied, resulting in her being charged AWOL during the period of August

24 to September 19, 2006.

9. On October 6, 2006, she was issued a proposal to suspend without pay

for 10 days.

10. On October 11, 2006, she was placed on leave restriction.

11. On October 13, 2006, she was informed by S0 that her requests for

leave were not procedurally submitted and therefore, not approved.

12. S1 issued a memorandum entitled "Counseling for Failure to Follow

Procedures" which required her to obtain permission in order to leave

the office.

13. S1 placed her in AWOL status on October 25 through 27, 2006.

14. On October 31, 2006, S1 suggested that she "file a complaint with

EEO or any of the other resources available to [her], as [she] did with

[her] previous supervisor after he proposed a suspension for AWOL."

Complainant says that this message was forwarded to upper management,

in addition to several other persons within the Office of Human Resources

Management.

15. On January 12, 2007, she was given a Letter of Counseling alleging

that she had lost the travel documents of the Secretary of Commerce.

16. On January 24, 2007, S1 attempted to taint her new supervisor's

opinion of her.

17. On January 26, 2007, she was issued a suspension for seven calendar

days for being AWOL and for failing to follow leave procedures.

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 EEOC Administrative Judge (AJ).

Complainant timely requested a hearing but subsequently withdrew her

request. Consequently, the Agency issued a final decision pursuant to 29

C.F.R. § 1614.110(b). The decision concluded that Complainant failed

to prove that the Agency subjected her to discrimination as alleged.

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. (November 9, 1999) (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”).

We assume for the purposes of this decision that Complainant established

a prima facie case of disability discrimination and reprisal. We also

find that management officials provide legitimate, non-discriminatory

explanations for their employment actions. The record supports the

finding that Complainant failed to follow established Agency procedures

with respect to requesting leave despite numerous attempts by management

officials to explain such procedures. In addition, several witnesses

corroborated the fact that Complainant had a history of time and

attendance problems.

We also agree with the Agency in concluding that the record is devoid of

evidence establishing discriminatory or retaliatory animus on the part of

any management official. We note that Complainant’s testimony amounted

to vague, uncorroborated general assertions. Moreover, despite being

given 30 days after receipt of the Report of Investigation to provide

a rebuttal statement, Complainant nevertheless failed to provide any

statement rebutting the Agency's stated explanation for its employment

actions as being a pretext to mask discriminatory animus.

CONCLUSION

Accordingly and based on a thorough review of the record, we AFFRIM the

Agency’s final decision.1

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

December 2, 2011

__________________

Date

1 We note that Complainant does not raise any assertions on appeal.

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01-2008-2613

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013