0120142632
12-23-2016
Ayana C.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ayana C.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142632
Hearing No. 420201200007X
Agency No. 116832200328
DECISION
Pursuant to 29 C.F.R. � 1614.403(a), Complainant timely appealed the Agency's June 11, 2014, final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Assistant (GS-07) at the Naval Education and Training Professional Development Center ("NETPDC") at Saufley Field in Pensacola, Florida.
On January 20, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when on or around October 12, 2010, she became aware that cash awards were given to her co-workers and she did not receive an award.
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 requested a hearing, and the assigned AJ conducted the hearing and issued a finding, which established the following undisputed facts.
Complainant worked for the Agency for about thirty four years, and been a Management Assistant for around seven years at the time of the alleged retaliatory act. Her first level supervisor ("S1") was the Branch Head and Management Analyst for the Administration and Logistics Branch and her second level supervisor ("S2") was the Director for the Operations and Analysis Division. Her duties included (but were not limited to) providing S1 with "assistant level support," maximizing efficient use of forms, providing clerical support for office operations, and acting as the internal and external point of contact in the Administration and Logistics Branch regarding recordkeeping matters, projects, functions, and conferences. Both S1 and S2 knew that Complainant filed an EEO complaint in November 2009, having both been interviewed during the investigation. At the time of the alleged retaliation, the investigation for the 2009 complaint was still open.
On a quarterly basis, S1 would review the accomplishments of the nine employees he supervised, and, if deserved, he would recommend employees for on-the-spot ("OTS") awards.2 Agency policy and practice provides that OTS awards are cash awards of up to seven hundred fifty dollars that "may be used to recognize a group or individual effort that goes beyond expected job performance or to recognize exceptional accomplishments such as outstanding achievement." See Guide No. 451-02 and Civilian Human Resources Manual ("CHRM") Sub. Ch. 451.1 (Sept. 2005). S1 made the recommendations by filling out a form and submitting it to S2 for approval.
In late July 2010, S1 recommended six employees, not including Complainant, for OTS awards. Complainant alleged that she did not receive an OTS award as retaliation for her November 2009 complaint, citing four "achievements" she provided to S1, which she believed justified an OTS award for July 2010. Complainant also alleged that S1 and another supervisor cited "performance issues" that had not been mentioned prior to her EEO activity. At the time, S1 was aware that at least one of the six employees he recommended engaged in prior EEO activity, and to his knowledge, performance issues did not preclude a recommendation for an OTS award. S1 explained that he did not recommend Complainant for an OTS award in July 2010 because her performance did not warrant one.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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. Nat'l Labor Relations Bd., 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 ("MD-110) 9-17 (Aug. 5, 2015)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas. 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 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).
Upon review, we find that the evidence in the record supports the AJ's decision. Assumingthat Complainant established a prima facie case of discrimination based on reprisal, the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions. S1 stated that he did not recommend Complainant for an OTS award in July 2010 because her performance did not warrant one. S1 explained that the recommendations for OTS awards require that the recommender point to a "specific act that the employee has performed." The form S1 filled out for each recommendation included a check list quantifying how the employee's action resulted in "intangible benefits" (e.g. saving coworkers time); and a "Justification" section instructing the recommender to "briefly describe how employee was exemplary, i.e., exceeded job requirements, act of heroism, etc." This reflects Agency-wide guidelines as directed in the Agency's Guide No. 451-02 and CHRM Sub. Ch. 451.1 (Sept. 2005). While Complainant's prior time and attendance, as well as performance issues were referenced in the record, S1 states that these would not influence or preclude an OTS award.
S1 further explained that the four" achievements" Complainant cited as evidence that she went "above and beyond" her expected job performance were insufficient to justify a recommendation for an OTS award because they fell within her job description. Specifically, Complainant provided that she went "above and beyond" when she (a) suggested to S1 that he request employee feedback on accomplishments; (b) translated meetings for an employee with a hearing impairment; (c) assisted subject matter experts ("SMEs") with their travel and (d) suggested the use to digital signatures for Direct Cite Authorization forms. S1 stated that suggestion "a" was nothing new as he already solicited feedback from employees and was not made by Complainant until December 2010. With regard to the other three "accomplishments," S1 said that Complainant and other employees had translated for the impaired employee prior to his arrival in February 2009; assisting SMEs was part of Complainant's duties; and he came up with the digital signature idea after Complainant refused to complete a task.
In attempt to show pretext, Complainant argues that the AJ and S1 erred in characterizing the criteria for an OTS award as going "above and beyond," alleging that a specific action was not required to warrant an OTS award. We disagree, based on the official Agency-wide guidance on issuing OTS awards included in the record and referenced above. Complainant contends, without providing evidence, that when determining which employees to recommend for OTS awards, S1 did not hold the July 2010 recipients to the "above and beyond" threshold he cites as his legitimate non-discriminatory reason for not recommending Complainant. Moreover, Complainant contends that S1 provided these awards every year to employees for simply doing their job or "doing nothing at all." As an example, Complainant cites her coworker, a secretary, who was awarded for "administrative issues."
Notwithstanding Complainant's contentions, the "Justification" section on each of the OTS award forms S1 submitted in July 2010 identifies an instance where the employee either exceeded job requirements or took a specific action justifying the award. For example, the form S1 submitted recommending an OTS award for the secretary Complainant references, describes in addition to administrative excellence, how she prevented a safety hazard by reporting damage to a walkway and insuring it was cleared. An instance of an award to an employee exceeding job requirements describes how an employee compiled a detailed reference CD as materials for a conference within a few hours' notice. Also, two of the employees were awarded for taking on the duties of a retired employee for six hours per week. Complainant does not dispute the examples provided in the forms, which all illustrate a level of work "above and beyond" job requirements that is not reflected in Complainant's four achievements.
We find Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for retaliatory discrimination. Although we have examined Complainant's additional contentions of pretext and AJ bias, we decline to discuss them further, given the lack of supporting evidence, and in light of the substantial evidence in the record supporting the AJ's determination.
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 finding of no discrimination.
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
December 23, 2016
__________________
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 On appeal, Complainant argues that S1 supervised a total of eight employees and that he recommended all but Complainant for OTS awards. However, the record supports the AJ's account that six employees were recommended for OTS awards and S1 supervised a total of nine employees.
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