0120073804
02-26-2009
Anita Heningberg, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Anita Heningberg,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073804
Agency No. 200J-0506-2006102871
DECISION
On September 4, 2007, complainant filed an appeal from the agency's
October 14, 2004 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted 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 lead telephone operator at the agency's Medical Center in Ann Arbor,
Michigan.
On August 1, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of sex (female) and age (over 40
years old) when:
1a. On June 28, 2006, complainant's tour of duty was changed from
Monday-Friday to Thursday -Tuesday; and
1b. Complainant was suspended from July 11, 2006 through July 15,
2006.
Complainant's complaint was subsequently amended to include the additional
claims that complainant was discriminated on the bases of race, sex,
and in reprisal for prior EEO activity when:
2a. On December 16, 2006, complainant's supervisor removed her from
her office, locked her out of her locker, and altered her duties;
2b. Since December 16, 2006, complainant has been denied opportunities
to work overtime;
2c. On or about January 8, 2007, complainant was not selected for
the position of Supervisory Program Support Assistant (GS-7);
2d. Complainant received a 14-day suspension from February 4, 2007
through February 18, 2007; and,
2e. On January 18, 2007, complainant received a written warning
concerning personal telephone calls at work.
In investigative affidavits, complainant's supervisor stated that
complainant's tour of duty was changed to relieve two employees
(black females) who previously worked on weekends for three years, and
complainant was the only similarly situated day shift employee who did
not work weekends. "So what I did was changed [complainant's] tour and
those two people's tour to put her on one day of the weekend and leave
somebody else on one day of the weekend and then rotate the three of
them so they could all have the weekend off," the supervisor explained.
Regarding claim 1b, the supervisor stated that complainant was suspended
because she was absent without leave (AWOL) twice in May 2006 because
she came to work late twice without a good excuse, although complainant
had been previously counseled regarding time and attendance matters.
With respect to claim 2a, the supervisor stated that complainant's
office was converted into a lounge for employees because the agency
needed complainant to serve as a leader with employees instead of working
in an office by herself. The supervisor further stated that converting
complainant's office into a lounge also allowed employees to take lunch or
breaks without interfering with those who were working. The supervisor
also stated that she told employees to clean out the workspace and
place items in their lockers, but she did not lock complainant out
of her locker. The supervisor further stated that she did not change
complainant's work duties, only changed the days that she worked.
Regarding claim 2b, the supervisor stated that she had three employees
working mornings (including complainant), one employee working afternoons,
one employee working overnight, and two employees working "extra."
The supervisor stated that because she had more than enough employees
to cover the workload, the only time that overtime was available was if
someone called in sick, and in that case, the supervisor asked employees
who were already at work to cover the absent employee's shift as overtime.
The supervisor further stated that she asked complainant several times
to work overtime, but complainant turned down her requests.
With respect to claim 2c, the supervisor stated that she chose the
selectee for the Supervisory Program Support Assistant position because
the selectee had better credentials for supervising and communicating
than complainant. The supervisor further stated that she reviewed the
applicants' time and attendance and disciplinary records and found that
the selectee would be best suited for the position.
Regarding complainant's 14-day suspension, the supervisor stated that
complainant was suspended in February 2007 because four observers on
a task force reported that complainant refused to answer the telephone
on three occasions and left her post for at least 45 minutes on another
occasion.
Regarding claim 2e, the supervisor of the communications section stated
that he issued complainant a letter of warning because he observed
complainant making personal phone calls several times while she was on
duty during a two-week period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC 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 its final decision, the agency the concluded
that complainant failed to prove that she was subjected to discrimination
as alleged because she did not prove that the agency's nondiscriminatory
explanations for its actions were pretext for unlawful discrimination
or reprisal.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she proved that she was subjected
to discrimination because she demonstrated that she was the only
employee who was suspended for lateness and who did not work overtime.
Complainant further stated that all of the allegations of misconduct
contained in the agency's 14-day suspension notice were rebutted in
a letter she sent to the agency. Additionally, complainant asserts
that there is a pattern of disparate treatment against minority women
telephone operators at Ann Arbor because only minority women had their
tours of duty changed to include weekends or midnight hours. The agency
requests that we affirm its final decision.
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 EEOC Management
Directive 110, 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").
In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate
treatment claim). First, complainant must 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. Kimble
v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Assuming arguendo that complainant established a prima facie case of
discrimination and reprisal, we nonetheless find that the agency provided
legitimate, nondiscriminatory reasons for its actions, as detailed above.
Complainant argues that she has proven that the agency discriminated
against her because her supervisor stated that complainant was the
only employee that he suspended for arriving late to work. However,
the supervisor noted that other employees who were counseled or warned
about attendance and conduct issues did not repeat their offending
behavior, unlike complainant.1 Complainant likewise contends that she
was the only telephone operator who did not receive overtime. However,
complainant failed to rebut the agency's claims that complainant rejected
several opportunities for overtime. Complainant further contends that
minority women were the only employees who had their schedules changed.
The record reveals that, of the seven telephone operators during the
relevant period, five were black, one was Hispanic, one was white, five
were females, and two were males. However, the agency explained that the
schedule changes occurred so that two black females who previously worked
the day shift on weekends could share the burden of working the day shift
weekends with complainant, who previously did not work on weekends.
Finally, complainant contends that she refuted the agency's reasons for
issuing her a 14-day suspension in a rebuttal letter. While complainant
denies the claims lodged against her in the rebuttal letter, we are not
persuaded that the agency's decision to suspend complainant reflects that
the agency's articulated reasons are pretext for unlawful discrimination
or reprisal. In so finding, we note that the 14-day suspension was
largely based upon the reports of several observers who reported in
detail that complainant engaged in various acts of misconduct. Thus, we
find that the agency properly found no discrimination because complainant
failed to prove that the agency's explanations were pretext for unlawful
discrimination or reprisal.
CONCLUSION
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_ February 26, 2009_________________
Date
1 The record contains a copy from the agency to complainant dated December
2, 2005, wherein management directed complainant to be at work at her
designated duty station on time and to remain there until her scheduled
dismissal time or until she is relieved from duty. The record further
reveals that complainant was also reprimanded for being AWOL on August
4, 2005.
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0120073804
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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