0120152441
11-30-2017
Vickie P.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vickie P.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120152441
Hearing Nos. 430201300124X, 430201300326X
Agency Nos. DECA-001012012, DECA-001612012, DECA-000292013, DECA-000622013
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 20, 2015 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 was a reemployed retired annuitant, who worked as an Investigation Specialist in the Fraud, Waste and Abuse Unit at the Agency's Office of the Inspector General (IG) facility in Fort Lee, Virginia. Her position was eliminated effective September 30, 2011.
Between April 2012 and February 2013, Complainant filed four EEO complaints (docketed as DECA-001012012, DECA-001612012, DECA-000292013 and DECA-000622013), essentially challenging the Agency's failure to select her for posted vacancies after her position was eliminated. Complainant alleged discrimination based on sex (female) and/or reprisal for engaging in prior protected EEO activity under Title VII.2 Complainant claimed that the alleged termination and refusal to rehire her was in reprisal for her participation as a favorable witness in support of another employee, with whom the agency settled.
As an initial matter, the Agency dismissed two claims as untimely raised with an EEO counselor. Noting Complainant's initial EEO contact was no earlier than February 22, 2012, the Agency dismissed the following two claims:
1. Effective September 30, 2011, the Agency eliminated Complainant's position and terminated her employment rather than placing her in another position.
2. On December 22, 2011, Complainant was told she was ineligible for a position she had applied for under vacancy announcement, DECA-12-567971-MP, although she was qualified for the position.
The remaining claims raised were consolidated for investigation and hearing. As consolidated, those claims alleged sex discrimination and unlawful retaliation, when:
3. On January 27, 2012, she learned she was not selected for the Human Resources Assistant position announced under (JOA) DECA 12-562044;
4. On February 9, 2012; she learned she was not selected for the Office Automation Assistant position announced under (JOA) DECA 2-596841;
5. In January 2012, she learned she was not selected for the Human Resources Assistant position announced under (JOA) DECA 12-569018;
6. On February 6, 2012, she learned she was not selected for the Administrative Support Assistant position announced under (JOA) DECA 12-631105;
7. In March 2012, she learned that [the General Counsel] wrote untrue comments about her in the Grievance Report of Investigation;
8. On October 17, 2012, she was advised by the Deputy Inspector General that she should apply for an upcoming vacancy, and a short time later, he told Complainant that the "people above him" would not let him hire her; and
9. On December 19, 2012, she was prevented from applying for the position, Investigator, GS-1810-12, because of her status as a re-employed annuitant.
Hearing Before EEOC Administrative Judge
After its investigation into the seven accepted issues of the complaint, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ held the two-day hearing on April 15 and 16, 2015. During the hearing, Complainant was represented by an attorney. Thirteen witnesses testified. All but two were management witnesses.
On May 12, 2015, the AJ issued a decision in favor of the Agency. As an initial matter, in his decision the AJ noted that on April 15, 2013, Complainant asked the AJ to reinstate her two dismissed claims. On November 27, 2013, the AJ denied Complainant's request. The AJ found that she did not contact an EEO counselor until February 22, 2012, which was 145 days after the date she should have suspected discrimination.
Pursuant to the parties' joint request, the case was then referred to a settlement judge, who placed the matter in abeyance until February 3, 2014.
On June 6, 2014, Complainant filed a "motion for reconsideration" of the dismissal for timeliness of claims 1 and 2. The AJ found that Complainant should have reasonably suspected discrimination no later than September 30, 2011, "as all other employees had been placed by this date and her job was eliminated." The AJ denied Complainant's request, finding that the claims were untimely and that she had not provided a reason to waive the timeliness requirement. During the pre-hearing conference and again during the trial, Complainant objected to the dismissal of her claims.
Meanwhile, Complainant filed another EEO complaint (DECA-001302014). The AJ decided not to consolidate that matter with the ones scheduled for a hearing. We note that we have another appeal (EEOC Appeal 0120172280) pending with us on that complaint.
Statement of Facts
With regard to the claims alleged here, the pertinent record shows:
Complainant, a retired federal employee, was reinstated as a re-employed annuitant with DECA HQ, Office of Inspector General as a GS-1802-06, Investigative Assistant on September 16, 2005. A justification was done at that time. Complainant had previously served as GS-1802-12 Investigator. It was uncontested that her performance was not an issue in this case. The GC stated that she "is universally recognized as the most knowledgeable investigator in the office and has been designated as the trainer for new arrivals."
Between March and April 2011, Complainant participated as a witness in support of another employee in the other employee's grievance complaint against the Agency. During the investigation of the other employee's grievance, claims of sexual harassment were unveiled, including evidence that inappropriate comments were directed to Complainant in March of 2011.
By letter dated April 25, 2011, Complainant was advised that her position would be filled by a registrant in the Priority Placement Program (PPP). This is a program that places military spouses. The notice, titled "Termination of Appointment" advised Complainant that her termination would become effective May 21, 2011. She was not terminated in May of 2011. Instead, the Agency amended the "Termination of Appointment" and placed her in an "over hire position" effective May 17, 2011. That position was funded to the end of the fiscal year, ending September 30, 2011.
Complainant testified that senior management officials assured Complainant that she would be retained after September 30, 2011 through reassignment.
Effective September 30, 2011, however, the Agency terminated Complainant's employment. All other reemployed annuitants at headquarters were retained either in their positions or by reassignment. The record suggests that there were vacancies that existed at the time of Complainant's termination or shortly thereafter.
At the time of her termination, Complainant states that she was unaware of the Agency's retaliatory intent. She claimed that she first learned that she had been retaliated against when, on March 9, 2012,3 she was provided a copy of the August 2011 report ("the Sherman report"), authored by the General Counsel, concerning the sexual harassment/discrimination grievance of the other employee on whose behalf Complainant had testified. The grievant provided Complainant with the report. In report contained a recommendation that Complainant be terminated. She was terminated a month later.
Claim 3 - HR Assistant position
She applied on November 21, 2011. She was deemed qualified and her name was submitted to the Selecting Official, Chief of Labor and Employee Relations Division. Another female was selected. Complainant was not interviewed. The Selecting Official (RMO1) did not consider Complainant or any other annuitant. She denied that she was influenced by anyone.
Claim 4 - Automation Assistant
Complainant applied for this position on January 31, 2012. She was found qualified, but she was not among the highly qualified, and therefore, she was not referred. A female, preference eligible veteran was selected.
Claim 5 - HR Assistant
Complainant did not apply and the announcement did not exclude annuitants. Ultimately, the DLA did not provide a certificate of eligible candidates because a military spouse was given priority and placed in the position.
Claim 6 - Administrative Support Assistant
This position was limited to current appointable DECA employees in the local commuting area. Complainant was not a current DECA employee and was not eligible. Complainant did not apply for the position.
Claim 7 - Untrue statements in the Sherman Report
The General Counsel conducted an investigation of the grievance that alleged sexual harassment against another female employee. The Report concluded that management retaliated against the grievant for filing the grievance by lowering her performance evaluation. The Sherman Report contains multiple references to Complainant, including, but not limited to, accusations that she was guilty of "inciting a rebellion" within the office, "poisoning [the named grievant's] mind and manipulating her to challenge authority." As a result, the Report recommended "exploring the early termination of Complainant's retire reemployment annuitant status, or assign her to other duties outside of the Inspector General's Office." Complainant's reemployed annuitant status was not terminated early. She continued in her position until September 30, 2011, the date she had been told the "over-hire" position to which she was assigned would be abolished.
Complainant did not receive a copy of that report until March 9, 2012. It was provided to Complainant from the other employee (the grievant) who received the report in response to her FOIA Report.
Claims 8 and 9 - Investigator Jobs
The area of consideration for both vacancies was current DECA employees. The Agency posted vacancy announcements for an Investigator GS12 and Lead Investigator GS 13. A job vacancy announcement was announced on December 19, 2012, for an Investigator, GS-1810-12 position. The position was announced as opened to "Current appointable DECA employees." Complainant was a former GS-12 in the 1810 series. The announcement also stated that, "This position DOES NOT meet the Department of Defense (DOD) criteria for hiring Reemployed Annuitants. Therefore, reemployed annuitants will not be considered for this position." After learning of the announcement, Complainant made EEO contact.
AJ Decision
The AJ made credibility assessments and issued findings of fact in support of his decision, concluding that Complainant failed to prove her claims.
The AJ found, for purposes of the decision, that Complainant's participation in the investigation of the grievance, which alleged racial and sexually inappropriate comments, constituted protected activity. However, the AJ found that the Agency articulated legitimate and non-discriminatory reasons for its conduct. The stated reasons were that the four selecting officials testified that they did not consider hiring annuitants for the vacancies at issue and that nobody influenced them to restrict the area of consideration to exclude Complainant. The AJ specifically found that the relevant selecting officials credibly denied knowledge of the details of the Sherman report. They also denied being coerced or influenced in any way to exclude Complainant.
The AJ found the "applicable DoD policy regarding the employment of annuitants stated that annuitants should be hired to meet critical mission needs and identified specific circumstances in which it may be appropriate to reemploy an annuitant. The HR Chief (RMO1) told managers that they would need to provide justification consistent with the DOD regulations.
The AJ found that "Complainant has provided only her own self-serving speculation to rebut the selecting officials' credible testimony." The AJ considered, but was not persuaded by, the testimony that it was not the usual practice to restrict annuitants, or that it had annuitants in its employ and the new rule came about around the time that the Agency had reason to retaliate against Complainant for her participation in the grievance raising claims of discrimination.
Agency's Final Order
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ's decision ignored her main claim that she was unlawfully terminated due to reprisal and sex discrimination, while male annuitants were retained and she was not. She also asserts that she was unaware of the agency's retaliatory intent and had no way of knowing until she received a copy of the Sherman report. She argues that the report showed that the General Counsel recommended that her status as a reemployed annuitant be terminated and is itself proof of retaliatory intent.
The Agency responds that the AJ's decision is supported by the evidence of record and should be affirmed.
ANALYSIS AND FINDINGS
Dismissal of Claims 1 and 2 for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an Agency EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
Here, Complainant is challenging her termination, effective on September 30, 2011, and being found ineligible to qualify for consideration for a posted vacancy in December 2011. However, Complainant did not initiate contact with an EEO Counselor until February 22, 2012, which is beyond the forty-five (45) day limitation period.
However, the Commission has adopted a "reasonable suspicion" standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
We are persuaded by Complainant's argument that she did not reasonably suspect her termination was the result of unlawful discrimination and/or retaliation until she received a copy of the Sherman report in March 2012, and read the accusations that she was "inciting a rebellion" and "poisoning the mind" of the grievant concerning her discrimination claims, and saw the recommendation that she be terminated from her position. She made EEO contact within three days of learning of the alleged retaliatory intent.
As such, we find that this is an appropriate case for the equitable tolling of the time requirements pursuant to 29 C.F.R. � 1614.604(c). Because the claims were dismissed, the record was not adequately developed on her allegations in Claims 1 and 2. Therefore, we will remand these claims back to the Agency for further processing. In doing so, we will also vacate the decision on the merits of Claim 7, and remand that back for consolidation with Claims 1 and 2 because it directly relates to those claims.
Merits - Claims 3 - 6 and 8 - 9
For the following reasons, however, we find that the AJ findings of fact or credibility determinations on the merits of claims 3 to 9 are sufficiently supported by the record.
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).
Here, Complainant alleges that the Agency subjected her to sex discrimination and retaliation when management treated her differently than similarly situated individuals, because or her sex and due to her support of another employee who had a prior successful grievance against the Agency. Even assuming for purposes of analysis (as did the AJ) that she established the prima facie elements of her case, the AJ found that the responsible Agency officials provided legitimate, non-discriminatory reasons for not selecting Complainant with regard to the non-selections at issue in claims 3 - 6 and 8 - 9. In three of the vacancies, Complainant did not apply because they were not opened to annuitants but the AJ found that management officials credibly testified they were not influenced by the Sherman report and legitimately made the decision not to employ annuitants for the positions. In the remaining positions, the AJ determined that the selections were based on other legitimate concerns such as employing a military spouse or an applicant with veteran's preference (both female). Again, the AJ found no evidence that the selecting officials were aware of the Sherman report or had been influenced in any way not to select Complainant. The substantial evidence of record supports the AJ's ultimate conclusion that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for how it filled the vacancies in question were pretext for sex discrimination or motivated by unlawful retaliatory animus. In this regard, we note that very little of Complainant's brief on appeal was devoted to her claims concerning the non-selections. Rather, she focused her appeal on the dismissed claim concerning her September 2011 termination, which we are remanding for further processing.
CONCLUSION
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination or retaliation by the Agency with regard to claims of non-selection alleged in claims 3 - 6 and 8 - 9, and we AFFIRM the Agency final order on those claims. However, we REVERSE the Agency's procedural determination dismissing Claims 1 and 2, and VACATE the decision on Claim 7 and REMAND these three claims back to the Agency for further processing pursuant to the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims 1, 2 and 7 in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 30, 3017
__________________
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.
2 While it appears that Complainant may have originally raised additional bases of discrimination, it appears she only pursued her sex and reprisal claims at the hearing and on appeal.
3 Three days later, Complainant contacted the Agency's EEO office on March 12, 2012.
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