0120160701
06-27-2018
Alycia R.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alycia R.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120160701
Agency No. HHS-CDC-0062-2015
DECISION
On December 21, 2015, 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 November 19, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination or a hostile work environment as she alleged.
ISSUES PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to discriminatory harassment with regard to a number of work incidents.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-11 at the Agency's facility in Atlanta, Georgia. Complainant was supervised by a Branch Chief (S1) who was stationed in Pittsburgh, Pennsylvania. S1 acknowledged that she was aware of Complainant's race, and that Complainant had a leg problem in 2013. In February 2015, S1 learned that Complainant had had a heart procedure the previous year. She was also aware that Complainant had requested a reasonable accommodation based on difficulties with commuting and driving. S1 indicated that she was not aware of any mental condition that Complainant may have had. S1 learned of the instant EEO complaint in October or November 2014.
Complainant filed a Union grievance in March 2013. Complainant stated that after filing the grievance, management began retaliating against her. Specifically, management closely monitored her time and attendance, refused her requests for Telework, placed her on a Performance Improvement Plan (PIP), and blocked her promotion along with various over incidents.
On February 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (mental), and reprisal for prior protected EEO activity, she alleges she was subjected to a hostile work environment when:
1. As of August 2013, the Branch Chief, Procurement and Grants Office, Office of
Acquisition Services, Branch 4 (S1) required Complainant to request
leave via an electronic Outlook calendar.
2. In late 2013, S1 attempted to secure information about Complainant's
medical condition from her treating physician.
3. By memorandum dated January 14, 2014, S1 denied Complainant's November 19, 2013, amended request to telecommute 2 days per week as a reasonable accommodation.
4. In or about March 2014, S1 denied Complainant her progression ladder promotion to the GS-12 level.
5. On September 2, 2014, S1 directed the timekeeper to change Complainant's timecard to 53 hours of annual leave instead of sick leave.
6. For the period between September 2 through 5, 2014, S1 directed the timekeeper to code Complainant with 32 hours of leave without pay (LWOP).
7. On September 3, 2014, S1 sent Complainant a follow-up email message, in which she requested Complainant to submit SF-71s and amend her time and attendance record for hours between May through July 2014, or be coded with LWOP for the applicable hours.
8. On September 8, 2014, S1 sent Complainant an email message regarding Complainant's anticipated return to work date following a medical procedure.
9. On September 18, 2014, S1 sent Complainant an email message regarding a revised 2014 Performance Management and Appraisal Plan (PMAP).
10. On September 29, 2014, S1 charged Complainant with being absent without leave (AWOL).
11. On October 1, 2014, S1 asked if Complainant wished to keep her job and commented that Complainant was slow and incompetent.
12. On October 2, 2014, S1 charged Complainant with being AWOL.
13. In an email message dated October 2, 2014, S1 asked Complainant, among other things, when she arrived at work that morning and directed Complainant to record her time and attendance accordingly.
14. By letter dated October 8, 2014, S1 officially reprimanded Complainant.
15. On October 17, 2014, S1 sent Complainant an email message in which she asked Complainant when she reported to work that morning, what time Complainant left work, and reminded Complainant to keep Complainant's office door open while at work.
16. By memorandum dated November 4, 2014, S1 denied Complainant's July 30, 2014, request to telework 2 days per week as a reasonable accommodation.
17. On unspecified dates, or during an unspecified time period, S1 directed employees to monitor and report to her Complainant's comings and goings to and from the office.
18. On an unspecified date, S1 denied Complainant's request for a transfer to another team.
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. In accordance with Complainant's request, 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 and harassment as alleged.
Specifically, the Agency indicated that it articulated, legitimate, nondiscriminatory reasons for its actions, namely, with regard to claims 1 and 2 (Leave Request and Documentation), Complainant argued that her position was covered by a collective bargaining agreement and as such, when she needed to request leave she was to use a SF-71 form and not the Outlook calendar. Complainant stated that in August 2013, she received an email directing her to contact S1 directly via telephone when requesting leave, and to post her scheduled leave on an Outlook calendar. Complainant stated other Contract Specialists were also required to post their leave on an Outlook calendar. Complainant believed that her privacy had been violated by using the Outlook calendar, since all employees had access to it and since the calendar showed what kind of leave Complainant and other employees were taking. Complainant was told by the union that this was a violation of the bargaining agreement.
S1 explained that because she worked out of Pittsburgh and supervised six locations, she required the use of the Outlook calendar for all of her locations and when she took over the Atlanta location, she attempted to implement the use of the Outlook calendar there. She was reminded by the union that she was not allowed to list the type of leave used but she was allowed to use Outlook to note the hours' employees would be out. S1 stated that she did not tell Complainant to only request leave by calling her personally as she could have also emailed her, but that most employees did not use email to report unexpected absences such as sick leave. S1 stated that she was not asking Complainant to do anything differently than any other employee. S1 indicated that employees who did not have pre-approved leave, had to request leave within the first two hours of the work day for unplanned absences. This requirement was stated in the Atlanta bargaining unit agreement and was a routine expectation for federal employees.
With regard to claim 2, Complainant claimed that S1attempted to get medical information from her physician, S1 explained that Complainant had submitted a note from a doctor that was not signed and that indicated that an addendum was included. The note indicated that if additional information was needed she should call. Therefore, S1 called to request a signed copy of the medical information and the addendum. S1 assured Complainant that she did not request or discuss any personal medical information.
Regarding claims 3 and 16, (Complainant's request to Telework), management explained that Complainant's requests were denied because only employees who were performing satisfactorily could participate in telework. Management was in the process of placing Complainant on a Performance Improvement Plan (PIP) and therefore she was not eligible. After Complainant completed the PIP, she requested telework in March 2014, but had not yet produced consistent quality or quantity of work. S1 indicated that for the remainder of 2014, Complainant's extended absences did not allow for consistent productivity or performance.
With respect to claim 4, (Complainant being denied a Promotion), S1 explained that Complainant was not promoted to a GS-12 level because she had just completed a PIP and she wanted Complainant to be more successful in her position. S1 maintained that Complainant's disability had nothing to do with her decision. She wanted Complainant to demonstrate that she was capable of performing at the GS-12 level.
Regarding claims 5, 6, 7, 8, 10, 12, 13, and 15 (Leave Charges), in response to claim 5, S1 stated that Complainant exhausted her sick leave and credit time by early June 2014. S1 stated that she asked the timekeeper to record Complainant's absences as annual leave in order for Complainant to be paid. S1 stated that when an employee requested unscheduled sick leave without having any sick leave available, management was instructed to code it as annual leave in lieu of sick leave. S1 stated that Complainant often requested annual leave when she called to say that she was sick. S1 also noted that an employee was not eligible to receive donated leave until after all of the employee's paid leave was expended.
In response to claim 6, S1 noted that Complainant was repeatedly instructed to submit her leave requests on SF-71 forms and to enter them into her timecards by August 21, 2014 but Complainant failed to do this. Therefore, per guidance from Human Resources (HR), Complainant was advised on September 3, 2014, that if she did not enter her leave by September 5, 2014, all of her requested leave would be coded as LWOP. S1 stated that she thought that Complainant exhausted all of her paid leave.
In response to claim 7, S1 stated that she sent an email to Complainant as a follow-up because of Complainant's failure to post leave for pay periods between May through July 2014. S1 stated that she was unaware that Complainant would be on leave for more than one day. According to S1 she sent the email to follow-up on a request made months before.
In response to claim 8, S1 stated that Complainant informed her about being hospitalized on September 2, 2014. S1 stated that she communicated with Complainant on September 8, 2014, in order to obtain Complainant's status.
In response to claim 10, S1 stated that Complainant informed her that she would return to work on September 26, 2014. When Complainant did not report to work that day, HR suggested that Complainant be called. Complainant stated that her doctor's note indicated that she would be out of the office through September 29, 2014. S1 reviewed the note, which indicated that Complainant would be absent through September 26, 2014. The time keeper confirmed that Complainant's absence was charged as AWOL because of the lack of supporting medical documentation.
In response to claim 12, on October 2, 2014, Complainant was charged with AWOL because she could not be reached but S1 indicated that after Complainant explained that she had been in another building in a meeting with management, she was not charged AWOL. In response to claim 13. also on October 2, 2014. S1 maintained that Complainant was questioned about her whereabouts because she could not be located. S1 indicated that Complainant had been instructed to complete her timecard but had failed to do so. Complainant needed to enter her leave for the last six months and she needed to make many corrections to her leave record as she had been paid for times that she had not worked.
In response to claim 15, S1 indicated that Complainant contacted her to let her know she was going to be late and to see if she could make up the time. S1 emailed Complainant for clarification and Complainant forwarded the response to the union and HR. S1 stated that she was trying to determine Complainant's leave or credit time status since Complainant never informed her how many hours she was late or whether Complainant made up the hours at the end of the day. S1 noted that in the previous year's branch meetings, all staff were asked to leave their doors open and that Complainant was not singled out on this instruction. Complainant was the only employee that did not comply.
In response to claims 9 and 11 (Performance), Complainant stated that on September 18, 2014, she was on leave recovering from open-heart surgery and S1 sent her a message regarding changes to the PMAP. S1 indicated that the changes had to be acknowledge so she did so because Complainant was out. S1 indicated that she had done this in the past for other employees that were absent.
Regarding claim 11, Complainant stated that she had a phone conversation with S1 concerning being marked as AWOL on September 29, 2014. Complainant indicated that during this conversation, she informed S1 that she intended to go to the EEO office. Complainant stated that in response, S1 asked Complainant whether Complainant "wanted to keep her job." Complainant stated that this was a threatening comment made in direct response to Complainant's statement that she was going to seek EEO counseling. S1 denied making this statement and noted that she would have never made such a statement to any employee. S1 stated that she may have commented about Complainant's need to improve performance, but not about the seeking EEO counseling.
In response to claim 14 (Reprimand), on October 8, 2014, Complainant was issued a written reprimand regarding her AWOL on September 29, 2014, and raising her voice at S1. S1 indicated that she attempted to explain that the AWOL could be amended if Complainant could support the absence. Complainant became very upset during this conversation, began yelling, verbally attacking S1, and used the term "harassment" for the first time. S1 indicated that she called HR regarding Complainant's unprofessional and disrespectful conduct and based on the discussion she issued the reprimand which addressed Complainant's behavior, the AWOL, and her failure to follow instructions.
In response to claim 17, Complainant alleged that S1 asked coworkers to report on her whereabouts. S1 maintained that she supervised 13 Contract Specialists in Atlanta and it was her responsibility to know whether her employees where in the office or not. S1 indicated that she did not treat Complainant differently than any of her other employees.
In response to claim 18 (Denied Transfer Request), Complainant requested a transfer in an October 2014, reorganization. Complainant argued that other employees who had less experience and education were transferred and she was not. S1 indicated that management decided to deny Complainant a transfer until her performance consistently improved. The Agency found that Complainant did not demonstrate that its legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that, "I am dissatisfied with the Agency's final decision regarding the subject complaint. The Agency did not fairly consider all documentation. Statements were obtained by individuals not included in the official investigation and used to make final agency decision. I have not received resolve. This letter is being sent to officially request an appeal to hear all issues cited in this complaint."
In response, the Agency contends, in pertinent part, that its FAD be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
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").
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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation 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. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Based on a thorough review of the record including matters not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal, race, and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as were listed above. We find that Complainant did not show that the Agency's reasons were pretext for discrimination. While it is clear, that Complainant disagrees with S1's management style, she did not show that S1's actions where outside normal interactions or that S1's work-related actions, which mostly involved performance and time and attendance issues, were motivated by discriminatory animus.
With respect to Complainant's claim that she was denied a reasonable accommodation, we find that even if she was an individual with a disability, the record indicates that she was not qualified, i.e., performing her duties in a satisfactory manner.2 As noted above, management was in the process of placing Complainant on a PIP when she first requested telework. After she completed the PIP, she again requested telework in March 2014, but she had not yet produced a consistent quality or quantity of work. Finally, S1 indicated that for the remainder of 2014, Complainant's extended absences did not allow for consistent productivity or performance.
With respect to Complainant's contentions on appeal, we find that other than her conclusory statement, she has not provided any evidence which shows that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
With regard to Complainant's allegation of harassment, we note that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994).
To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Upon review, we find that Complainant has not established a claim of harassment/hostile work environment. Complainant has not provided evidence which indicates that she was subject to conduct which had the purpose or effect of unreasonably interfering with her work performance, and/or created an intimidating, hostile, or offensive work environment. We find, in light of the standards set forth in Harris, no persuasive evidence that the incidents - which appear to be routine office/work related incidents, even if accurately described by Complainant, were sufficiently severe or pervasive enough to have unreasonably interfered with her work performance and/or to have created an intimidating, hostile, or offensive work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination or a hostile work environment.
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 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. 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 (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
__6/27/18________________
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 "The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m).
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