0120141929
10-28-2016
Britany N.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Britany N.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120141929
Hearing No. 420-2009-00209X
Agency No. ARREDSTON08SEP03789
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 1, 2014 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
Complainant began working for the Agency in September 2006 as a GS-7 Human Resources Specialist at the Agency's Civilian Personnel Advisory Center (CPAC) in Location 1, Redstone Arsenal, Alabama. Complainant worked in this position through the Army Civilian Training, Education, and Development System (ACTED) Human Resources (HR) Intern Program. Pursuant to the internship program, Complainant was appointed in an "excepted" position for a period of two (2) years, unless extended. Upon satisfactory completion of the internship, Complainant would be noncompetitively converted to a career or career conditional appointment. If the intern failed to satisfactorily complete the internship, they would be terminated.
On December 8, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (mixed), sex (female), disability, and in reprisal for prior EEO activity when:
a. she was denied a career ladder promotion from GS-07 to GS09 and GS-09 to GS-11 by the Director, South Central Region Civilian Human Resources Agency in August 2007, February 2008, and the summer of 2008;
b. she did not receive correct pay from May 2007 through September 8, 2008 as an intern;
c. she was denied continuation of health and life insurance and contribution to Thrift Savings Plan (TSP) after her resignation in September 2008;
d. her Standard Form 50 was falsified regarding the reason for her termination;
e. she was forced to resign as a "career conditional" instead of "career" which affects her reinstatement eligibility status;
f. the Director and Acting Director of the South Central Region Civilian Human Resources Agency did not effectively follow through with all mandatory procedures and information for out-processing that affect insurance, TSP and all those covered by the insurance and ramifications thereof; and
g. she was subjected to daily harassment which thereby created a hostile and intolerable environment such as the displaying of posters pertaining to Methicillin-Resistant Staphylococcus Aureus (MRSA) and when it was perceived that she did not get the point, she was reissued one with her name on it; monitoring and refusal of bathroom breaks, refusal to return her to work, and refusal of correct pay.
On September 8, 2010, the Agency issued a final order implementing an EEOC Administrative Judge (AJ)'s decision dated August 26, 2010, without a hearing, finding no discrimination. On appeal, the Commission vacated the Agency's final order and remanded the matter to the Agency for a hearing. Leamon-Jacobs v. Department of the Army, EEOC Appeal No. 0120110125 (May 29, 2013).
Following the Commission's decision, the Agency submitted the case to the Hearings Unit of the Birmingham Field Office for the request for a hearing which is the subject of the instant appeal.
The record reflects that on November 20 and 21, 2013, the AJ held a hearing by videoconference and by telephone. Following the hearing, the AJ issued a decision on March 24, 2014, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of disability and retaliation.2 The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
In reaching this conclusion, the AJ noted that during the relevant period, Complainant, an individual suffering from fibromyalgia and the residual effects of MRSA, was matriculating through the Army Civilian Training, Education, and Development System (ACTED) Human Resources (HR) intern program at the Agency's Redstone Arsenal, Alabama facility. The Complainant was assigned to the U.S. Army Corps of Engineers, Mobile District, Civilian Personnel Advisory Center (CPAC) in Mobile, Alabama and appointed to the position of HR Specialist, GS-201-07, with full promotion potential to GS-201-11. Complainant's appointment to the subject position was effective September 18, 2006.
Complainant's duties required completion of the training competencies in HR staffing and position classification as outlined in the Master Intern training plan. The AJ noted that a requirement of the ACTEDS program included a mobility agreement in which Complainant signed on September 18, 2006. Upon successful completion of the intern program, Complainant was scheduled to be assigned to the Mobile District Civilian Personnel Advisory Center in Mobile, Alabama. The AJ noted that approximately six months after Complainant's appointment to the subject position, she was on maternity leave from February 2007 to March 2008.
In April 2008, Complainant returned to work and was counseled about her time and attendance. The AJ noted that when Complainant went on maternity leave, she did not fulfill the requirements for promotion from GS-07 to GS-09 and GS-09 to GS-11. The AJ noted that due to her extended medical leave for one year, Complainant was required to take refresher training to meet the core competencies of the first year of the training program to be prompted to the next level.
Regarding claim a, the AJ noted that during her testimony, Complainant's former supervisor stated that she supervised Complainant for approximately four months. The former supervisor stated that she determined that Complainant was not progressing at a point that would have led toward a promotion. For instance, the former supervisor stated that as an intern, one has to have to learn the functions of both staffers and classifiers. The former supervisor stated "what I had to do, which I felt it was fair to [Complainant], she had been out a year, to give her a little refresher in the classifications. So, she sat with the classifiers and in the intern program, you have to learn each element of that area to progress onto the next, so we went through the whole thing. She did well through there."
Further, the former supervisor stated that Complainant moved over to staffing and had her sit with the staffers and "I checked with the actions to have her to do the different actions. And, she did well while she was sitting with the staffers, but whenever she tried to do them on her own she could not."
The Human Resources Officer (HR Officer) testified that he became Complainant's supervisor after the former supervisor transferred to a different organization. The HR Officer stated that the former supervisor expressed her concerns about Complainant's performance and "the fact that [Complainant] couldn't apply what she felt some of the basic skills to the actual, from the training to the actual work environment. She also felt that there was some problems concerning [Complainant's] use of a computer, maybe not always business like, business-wise, but it may be for other reasons. The fact that she had problems with finding [Complainant] sometimes during the workday. [Complainant] would disappear."
The HR Officer stated that sometime in July 2008, the former supervisor advised her that she did not feel she could give Complainant a "Fully Successful" performance rating. The HR Officer stated that he would meet with Complainant to discuss her performance concerns. The HR Officer stated that in August 2008, he met with Complainant to discuss her performance issues. The HR Officer stated that he encouraged Complainant to come to Mobile [Alabama] but "she told me she was interested in the Labor and Management Employee Relations work. I told her that that work really had to be done on site. It was impossible to, virtually, because you need to build relationships with manager and Labor Union officials...and, I encouraged her, I told her that I thought she could be successful, if she would consider coming down here in our work environment, which was smaller. We only had ten people." The HR Officer stated that Complainant told him that she could not relocate. Instead, Complainant asked the HR Officer if there were any opportunities at the Agency's Redstone facility. The HR Officer stated that he told Complainant that all of his positions were located in Mobile.
Further, the HR Officer stated that in September 2008, he contacted Complainant because "it wouldn't have been a wise decision to leave an intern, who had questionable performance up there alone, unsupervised because [former supervisor] was leaving at the time. And, so we had - I offered the job and told her to come on to Mobile and encouraged her to do so." The HR Officer stated that Complainant told him that she would not relocate to Mobile and asked about opportunities at the Redstone facility.
The HR Officer stated that when Complainant refused to report to Mobile, he issued her a letter of termination effective September 15, 2008 "for her failure to report, failure to exercise her mobility agreement that she had signed and agreed to."
Regarding claim b, Complainant alleged that she was incorrectly paid as an intern from May 2007 through September 2008. The record reflects that Complainant did not return to work from maternity leave until March 4, 2008. The AJ noted that in her testimony, Complainant acknowledged that leave donations from co-workers were inadvertently returned to the co-workers, thereby causing her leave balance to be negative by 300 hours. Complainant also acknowledged that she had no knowledge of the proper procedure for requesting advanced sick leave and did not properly submit her leave requests to accurately record her absence.
Furthermore, the AJ noted that Complainant admitted that her pay issues resulted from having exhausted all of her annual and sick leave, and not having been allowed to return to work sooner than March 4, 2008. Complainant also admitted that the Director attempted to help her resolve her pay issues.
Regarding claim c, Complainant alleged that she was denied continuation of health and life insurance and contributions to the TSP after her resignation. However, Complainant testified that she never informed Agency management about not having received the benefits package a tissue. Complainant only dealt with other co-workers in an attempt to obtain the documents.
Regarding claim d, Complainant alleged that she wanted the Standard Form 50 (SF-50) to state that her resignation was under duress. The AJ noted, however, Complainant's preferred language was not used and the SF-50 stated that she was resigning due to personal reasons.
The Director testified that Complainant's Standard Form 50 "certainly wasn't falsified. I think there was a claim that her reason for separation was changed and there is provision within the operating guide to summarize the reason for separation and that's what was done."
Regarding claim e, Complainant alleged that she was forced to resign as a "career conditional" instead of "career." The AJ noted that a review of Complainant's appointment SF-50 dated September 18, 2006 showed her ACTEDS intern position was an "Excepted" position. The AJ further determined the appointment SF-50 states that Complainant's appointment to the position "is intended for a period of two years, unless extended up to one year. Upon satisfactory completion of the internship, you may be noncompetitively converted to a career or career-conditional appointment. If you failed to satisfactorily complete the internship, your employment will be terminated."
The AJ determined that if Complainant's employment had not ended on September 15, 2008, her status as a federal employee would have been converted to "career-conditional," not "career." Therefore, the AJ determined that Complainant was not forced to resign. Instead, Complainant chose to resign from her position in lieu of being terminated, effective September 15, 2008.
The AJ determined as noted above, a requirement of the ACTEDS program included a mobility agreement which Complainant signed on September 18, 2006. Upon successful completion of the intern program, Complainant was scheduled to be reassigned to the Mobile District CPAC.
Further, the AJ noted that in her memorandum to [Agency official] dated July 6, 2008, citing personal health reasons and those of her daughter, Complainant requested a compassionate reassignment to stay at Redstone Arsenal. On July 25, 2008, [Agency official] requested that Complainant provide medical documentation to support her request.
The AJ noted in his email to Complainant dated August 14, 2008, the Director notified Complainant that her request for a compassionate reassignment was denied because she failed to provide the medical documentation to support her request. Further, the Director notified Complainant that in accordance with the terms of the Mobility Agreement that she had signed, she was expected to report to the Mobile District CPAC effective September 14, 2008, to continue her intern training and development, and eventual placement. The AJ noted that when Complainant stated that she had no intention of relocating from Redstone Arsenal to Mobile District CPAC, the HR Officer told her that she was being terminated.
Regarding claim f, the AJ noted that Complainant alleged that she was denied continuation of health and life insurance and contributions to the TSP after her resignation. The AJ noted, however, Complainant admitted that she never informed Agency management about not receiving the benefits package at issue. The AJ noted that it is the Agency's policy to mail out the benefits package to separating employees. The Agency attempted to send the package to Complainant several times. However, the package was sent to an incorrect address. The benefit package was subsequently mailed to Complainant at the correct address.
Regarding claim g, the Director denied subjecting Complainant to harassment. The Director stated that he recalled Complainant telling him that "there were some posters, specifically, one in the women's restroom that had something about her - - about, an OSHA [Occupational Safety and Health Administration] poster that had something about her condition as she referred to it and that's the only thing I can recall." The Director stated that after Complainant expressed her concerns about the poster in the women's restroom, he "had one of the ladies that worked in the office go into the ladies' restroom and pull that one down. Also, [Complainant] mentioned something about the OSHA poster in the official break room area and that one as well was pulled down."
The Director also stated that Complainant never told him that she felt she was being harassed by other employees. The Director stated "the only time that something may have come up is when [Complainant], on the very last day of her employment, she mentioned something about those posters and that was the only mention."
With respect to Complainant's allegation that her bathroom breaks were being monitored, the Director stated "I'm not sure if it was exactly said that way. I do know that there was, whenever her supervisor was monitoring her daily activities because she was concerned about her productivity and performance. So, she was monitoring things. No, I don't know if it was specific about her bathroom breaks and how long they were, what she did on her bathroom breaks. Yes, I know that her activities were being monitored."
The former supervisor stated that during the relevant period Complainant never informed her that she was being subjected to harassment. The former supervisor stated that she recalled on one unspecified date, Complainant informed her that that the intern coordinator did not like her without elaboration. Furthermore, the former supervisor denied keeping Complainant from going to the bathroom.
The Agency, in its final action, adopted the AJ's finding of no discrimination.
The instant appeal followed. On appeal, Complainant argues that the AJ erred finding no discrimination because there is direct evidence of discrimination. For instance, Complainant states that while the Agency acknowledged that the delay in returning her to work was due to employees' concern about her condition and their safety "however, in his findings of 'fact,' [AJ] states that 'the evidence does not establish any correlations between Complainant's disability."
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that one witness testified by phone and two witnesses testified by videoconference at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A144521 (May 17, 2006).3 It is clear that there were no issues of witness credibility that might have been impacted by the taking of testimony by telephone, and neither party objected to the manner in which those witnesses testified. Under these circumstances, even if it is assumed that the AJ abused his discretion by taking testimony by telephone, the Commission finds that his action would have constituted harmless error.
In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse his discretion by electing to hold a video-conference hearing; and that the record, including the hearing transcript, does not reflect that the video-conference was so technically deficient as to preclude the AJ from rendering a reasoned decision, notwithstanding the appellate arguments of Complainant to the contrary.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond her bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation.
Therefore, 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 action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
October 28, 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 The record reflects that during the hearing, Complainant withdrew race and sex as bases. Further, we presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability.
3 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
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0120141929