0120140177
08-25-2016
Antoinette L.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Antoinette L.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120140177
Hearing No. 570-2010-00018X
Agency No. CRSD200800718
DECISION
On October 24, 2013, Complainant filed an appeal from the Agency's September 20, 2013, 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.
ISSUES PRESENTED
Whether the Agency discriminated against, and subjected Complainant to harassment, based on race, sex, disability, and in reprisal for prior EEO activity when it accused her of stealing; suspended her government purchase card; revealed her confidential financial and medical information; subjected her to Employee Assistance Program (EAP) counseling; threatened to terminate her; sowed discord amongst the staff to discredit her; and stated that her medical documentation was insufficient.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's Departmental Administration, Office of Security Services in Washington, D.C. On January 4, 2008, Complainant's supervisor (S1) (Caucasian, female, no disability, no prior EEO activity) placed Complainant on a fixed work schedule with duty hours from 8:00a.m. to 4:00p.m., Monday through Friday, due to her tardiness. S1 stated that Complainant's late arrivals were placing a burden on the other staff members.
Since January 4, 2008, S1 charged Complainant with absence without leave (AWOL) for periods when she did not provide proper medical documentation. On March 10, 2008, S1 issued Complainant a Letter of Leave Restriction, which was dated February 27, 2008. The letter outlined the requirements needed in medical documentation, and noted that Complainant needed to provide medical documentation for the entirety of her absences within fifteen days of returning to duty. On or around March 13, 2008, Complainant submitted a medical note, dated March 10, 2008, which stated that Complainant should be excused "beginning now," through "March 10, 2008," and that she should return to full physical activity on March 13, 2008. S1 found that Complainant was excused from work only on March 10, 2008, and charged her AWOL on March 11 and 12, 2008. S1 requested additional medical documentation, and Complainant stated that she would not provide additional documentation because the one provided was sufficient for all three days.
On March 19, 2008, Complainant met with S1 and the Branch Chief of Personnel Security (BCPS) to discuss charges on her government purchase card. S1 and the BCPS asked Complainant about two Blockbuster gift cards and a cutlery set, which she had received as promotional items when she ordered office supplies. Complainant stated that these items were for the office, but when asked to provide the items, she was unable to locate them. S1 informed Complainant that she would need to pre-approve any future charges to her purchase card. On April 3, 2008, S1 saw that Complainant had made charges without her approval, and temporarily suspended her card. After Complainant's card was suspended, S1 informed staff members to direct purchase card questions to one of Complainant's coworkers (C1).
During the March 19, 2008, meeting, Complainant alleged that S1 also disclosed Complainant's divorce, financial situation, and "some kind of infection" to the BCPS. On March 21, 2008, Complainant met with her second line supervisor (S2) (Caucasian, female, no disability, no prior EEO activity) to discuss issues with her attendance and performance. S2 suggested Employee Assistance Program (EAP) counseling as an option. Complainant met with an EAP counselor on April 7, 2008, and May 1, 2008.
On May 2, 2008, S1 and Complainant met to discuss her mid-year performance. S1 gave Complainant a satisfactory rating, and noted that her attendance affected her performance. S1 also asked that Complainant reduce the number of personal phone calls made at her desk. S1 informed Complainant that the purchase card issue was being investigated separately, and was not considered a performance matter.
On June 28, 2008, Complainant met with an EEO counselor and stated that S1 delayed her promotion, which should have been effective in January or February 2008. Once S1 learned of the issue, Complainant received her promotion.
On August 13, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against, and subjected her to harassment, on the bases of race (African-American), sex (female), disability (reduced pulmonary functions and unspecified mental disability), and reprisal for a filing a prior EEO case in 2006 when:
1. on January 20, 2008, S1 changed her work schedule from maxi-flex to a general schedule;
2. since January 2008, S1 charged her AWOL, even though she had requested leave ahead of time, had leave available, and was attending doctor's appointments;
3. on March 19, 2008, S1 accused her of stealing;
4. on March 19, 2008, S1 suspended her purchase card;
5. on February 27, 2008, S1 placed her on a leave restriction, and subsequently made changes to the restriction;
6. on March 19, 2008, S1 discussed her confidential marital and financial information in front of the BCPS, who had no need to know that information;
7. in March 2008, S1 and S2 subjected her to EAP counseling;
8. on May 2, 2008, threatened to terminate her during her mid-year appraisal;
9. S1 delayed her career ladder promotion, which was due in January or February 2008;
10. On unspecified dates, S1 sowed discord among her coworkers to discredit her; and
11. On unspecified dates, S1 repeatedly treated her medical information as unacceptable, and required her to obtain repetitive information from her doctors.
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 (AJ). Complainant requested a hearing but the AJ dismissed the hearing request on the grounds that Complainant did not respond to the Agency's discovery requests. The AJ remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
As an initial matter, the Agency dismissed claims 1, 2, 5, and 9 for untimely contact with an EEO counselor, and considered those incidents as background information. The Agency found that Complainant had not established a prima case of discrimination based on race, and sex because her own statements did not indicate that she was harassed on those bases. When asked why she believed that her protected bases were factors in the allegations, Complainant stated that it was because the Agency knew of her doctors' tests, lab work, and disability. Additionally, the Agency found that Complainant did not name any similarly situated employees, who were outside of her protected classes of sex and race, and were treated more favorably. The Agency also found that Complainant did not establish a prima facie case of reprisal discrimination because there was no nexus between her prior EEO activity, which occurred over two years ago, and the alleged discriminatory actions.
In regards to Complainant's disability discrimination claim, the Agency found that she was not an individual with a disability. Specifically, the Agency noted that Complainant did not specify a mental disability, and while it noted that she previously underwent surgery, her medical documents stated that she could return to work "with no restrictions," and "to full physical activity." Additionally, the Agency found that Complainant did not have a record of a disability; and that she was not regarded as an individual with a disability. Accordingly, the Agency found that Complainant had not shown that the Agency discriminated against, or subjected her to harassment based on sex, race, disability, or in reprisal for prior EEO activity.
Complainant filed the instant appeal, but did not submit a statement in support of her appeal. The Agency did not file an opposition brief.
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").
ANALYSIS AND FINDINGS
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (August 5, 2015). We note that on appeal, Complainant did not contest the Agency's dismissal of claims 1, 2, 5, and 9; as such, we AFFIRM their dismissal and will not address these issues further in this decision.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, disability, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 3, S1 stated that she did not accuse Complainant of stealing, but was trying to obtain information about what items Complainant purchased, why she purchased them, and the location of the items. For claim 4, S2 stated that she instructed S1 to suspend Complainant's purchase card for not following S1's direction to obtain pre-approval for purchases.
In response to claim 6, S1 stated that she asked the BCPS to attend the meeting as a witness and to act as a note taker. She stated that she asked Complainant about how her AWOL and leave without pay were affecting her financial situation because of concerns about her security clearance. S1 stated that she did not want to pry, but she learned that Complainant had issues paying a phone bill. Additionally, S1 stated that she reminded Complainant about the requirements needed in any the medical documents that she provided. S1 also stated that they discussed Complainant's recent bout with pinkeye, which the whole office knew about because the staff was concerned that she might be contagious.
For claim 7, S1 stated that during their March 19, 2008, meeting, she told Complainant about EAP as a resource, but stated that it was a recommendation, and not a referral. S2 stated that she informed Complainant that EAP might help her. S2 also stated that she recommended EAP, but did not require Complainant to attend EAP counseling.
For claim 8, S1 stated that she did not threaten to terminate Complainant; she stated that she outlined Complainant's performance areas and gave her a satisfactory rating. In regards to claim 10, S1 stated that she assigned purchase card duties to another coworker (C2), after Complainant's card was suspended. S1 stated that she informed C2 to go to C1 for guidance because she had concerns that Complainant had misused her purchase card. When C2 asked Complainant questions, S1 reminded C2 to refer her questions to C1.
For claim 11, S1 stated that Complainant provided medical notes for her absences, and that she found some to be unacceptable because they did not meet the parameters outlined in the Letter of Leave Restriction. For example, S1 stated that the unacceptable medical documents did not indicate that Complainant was incapacitated from duty, or were not signed by a physician.
Complainant made bare assertions that her management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant has not shown that the Agency discriminated against her based on her race, sex, disability and in reprisal for prior EEO activity when it accused her of stealing; suspended her government purchase card; revealed her confidential financial and medical information; subjected her to EAP counseling; threatened to terminate her; sowed discord amongst the staff to discredit her; and stated that her medical documentation was insufficient.
Harassment
As discussed above, Complainant did not establish that she was discriminated against with regard to any of her alleged bases. Accordingly, we conclude that a claim of harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were discriminatory. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that the Agency did not discriminate against, or subject Complainant to harassment, based on race, sex, disability, or in reprisal for prior EEO activity when it accused her of stealing; suspended her government purchase card; revealed her confidential financial and medical information; subjected her to EAP counseling; threatened to terminate her; sowed discord amongst the staff to discredit her; and stated that her medical documentation was insufficient.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
__8/25/16________________
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.
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