0120161871
03-20-2018
Cami C.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cami C.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120161871
Agency No. PH-14-0119
DECISION
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 March 29, 2016, 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 [insert]
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Procurement Analyst, GS-1102-12 at the Agency's Contractor Purchasing Systems Division Business Operations Center facility in Atlanta, Georgia.
On December 15, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), disability (mental), and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act. The complaint, as amended on May 5, 2015, alleged discrimination when:
1. On October 3, 2014, Complainant's second-level supervisor disapproved her request to utilize maxi-flex as her approved work schedule;
2. In December 2013, September 2014 and October 2014, the second-level supervisor harassed her and subjected her to disparate treatment regarding her terms, conditions and privileges of employment, specifically when:
a. On December 3, 2015, management initiated an investigation regarding her Permanent Change of Station (PCS) move and has not issued a decision, or fully paid reimbursement of her move;
b. Between September 2014 and October 2014, the supervisor informed Complainant that she must receive prior approval from a manager to speak with the EEO office and Union representative;
c. On September 15, 2014, the supervisor told her that her completed work assignments in calendar year 2014 reflected a meaningful lack of productivity and timeliness;
d. On October 3, 2014, the supervisor informed Complainant that, when Complainant was working on Complainant's EEO complaint, she must use her personal time or take leave to meet with Union Representatives;
e. On October 3, 2014, the supervisor denied Complainant permission to communicate with her direct supervisor, the Acting Supervisory Procurement Analyst; and
f. In October 2014, the supervisor told Complainant that Complainant was responsible for her assignments while Complainant was on approved leave;
3. On September 3, 2014, the supervisor terminated Complainant's telework schedule; and
4. On March 18, 2015, the supervisor issued Complainant a Notice of Proposed Removal letter citing submission of inaccurate documents and conduct unbecoming to a federal employee.
The pertinent record shows the following facts. Complainant is an African-American woman. She was diagnosed with depressive disorder. Complainant was also diagnosed with ovarian disease and severe anemia. Management was aware of her race, color, sex and medical conditions. Complainant had 15 years of federal service.
Complainant's first level supervisor was the Acting Supervisor, Procurement Analyst, GS-1102-13. (African-American, Black, male) (RMO1). He became her supervisor after her former supervisor retired. Her second level supervisor was the Acting Director, Contractor Purchasing System Review Group, GS-1102-14 (Caucasian, White, female) (RMO2). The third level supervisor was the Director, Business Operations Center, GS-1101-15 (Caucasian, White, male (RMO3).
Claims 1 and 3 - Terms and Conditions - Work Schedule
Since 2009, Complainant had a telework schedule of four-ten hour days, with Friday as her Regular Day Off. All employees were on maxi-flex and telework, including the supervisors. Complainant had been on a maxi-flex schedule with the exception of one pay period where requested (and the time keeper changed her to) a compressed schedule. She was then changed back to maxi-flex schedule the next pay period beginning October 6, 2014.
11 and 1/2 Hour Work Day
Complainant requested to work 11 and 1/2 hour days. RMO2 denied her request for an 11 and 1/2 hour day. There is no evidence that any other employee worked an 11 and 1/2 hours day schedule. This was denied because the supervisor did not see that schedule as beneficial to the mission.
On July 31, 2014, Complainant submitted a grievance to the Union. Shortly thereafter, her former supervisor retired from federal service, effective August 31, 2014.
RMO2 became her acting supervisor on September 2, 2014, after Complainant's former supervisor retired. On September 3, 2014, RMO2 terminated Complainant's telework arrangement. Complainant was told that it was because of her work performance and attendance record. RMO1 agreed with the reasons for the termination of the telework schedule
RMO2 told Complainant not to talk with RMO1 regarding her telework schedule, but that was the only topic for which Complainant was told to refrain from talking with RMO1.
RMO2 averred that Complainant did not request a reasonable accommodation. RMO2 denied her request for advance sick leave, because RMO2 averred that Complainant's doctor's note did not say how long she would be out.
The Director (RMO3) was aware of her request for leave and saw the doctor's notes. He said there were two different statements. One said she could not return to work. The other note said that she could work with no restrictions. RMO3 said that he did not know her medical condition. He learned about the EEO on March 27, 2015. He directed that RMO2 to retain supervisory authority. After Complainant requested advance sick leave, RMO2 denied the request - which lead to the union complaint.
Time and Attendance Coding
RMO2 said that Complainant entered the wrong code on her time sheet when she recorded her time spent on her EEO complaint. She used "the BD Code" on her time sheet. She needed permission to use the BD Code.
Claim 2 - Harassment
Due to the consolidation and relocation of certain personnel to specified hub sites, Complainant received a Notice of Transfer of Work outlining the relocation of her duty station from Mobile, Alabama to Atlanta, Georgia. After Complainant's request for an exception to the relocation was denied, Complainant accepted the relocation. Complainant accepted a transfer to the Atlanta office and was supposed to report in September of 2013.
The Agency authorized a house hunting trip and Temporary Quarters Subsistence Expenses. Complainant filed a statement verifying that she reported to her Atlanta duty station on or about October 20, 2013. The Agency authorized $35,847.00 for the reimbursement of unexpired lease expenses. Complainant submitted a travel voucher for reimbursement for her temporary lodging and house-hunting trips.
On December 3, 2013, management initiated an investigation regarding her Permanent Change of Station (PCS) move and claimed expenses. On or about May 23, 2014, Complainant submitted an official Permanent Change of Station (PCS) claim for reimbursement of relocation expenses. During the process, Complainant verified that she had discontinued her residence at her old duty station and established a residence in her new duty station.
Thereafter, the Agency began an investigation of the information that Complainant provided to support her PCS claim. The Agency found inconsistencies: 1) the address still showed an Alabama address; 2) Complainant claimed reimbursement for $1,000 more than the monthly rent noted on her lease; and 3) the property at issue was owned by a company in which Complainant had a personal ownership interest. In addition, the investigator observed Complainant's personal vehicle in the garage of a location in Alabama. Complainant told the investigator that she did not have a current Atlanta-area address. Complainant averred that the investigator failed to reveal his identity or to tell her that she was being investigated.
RMO1 states that she was not told to use personal time or to take leave when working with her EEO complaint and that she was not denied the ability to communicate with him. He also testified that the office policy is that anyone can go to the EEO, without permission. He stated that he has an open-door policy and that she was aware of the policy.
Work Responsibilities While on Leave
RMO2 said that she did not request that Complainant work while on leave. She attributed the issues as arising after Complainant returned to work from leave and after she did not check on her pending assignments in the manner that RMO2 expected. Complainant disputed that her productivity was off or that she was late on her reports. Both RMO1 and RMO2 averred that no one told Complainant that she was responsible for work while she was on leave.
The record is unclear as to whether or not Complainant expressed to management that she was being harassed or in a hostile work environment.
Complainant also challenged that she was not paid for any of five entitlements that she believed were due to her because of the relocation. Those included expense for her hour-hunting, the en-route travel, the termination of Lease expenses, temporary quarters and miscellaneous expenses, including the costs of shipment of the household goods to the new location.
Claim 4 - Proposed Removal
On January 28, 2015, the Agency's Office of Independent Assessment provided the final report of the investigation which substantiated an allegation of fraud committed by Complainant. On May 18, 2015, the Agency issued Complainant a Notice of Decision of Proposed Removal, for submission of inaccurate documents and conduct unbecoming of a Federal employee. Complainant responded the Notice. Complainant denied the charges. She was removed, effective, May 20, 2015.
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 timely requested a hearing but subsequently withdrew her request. Consequently, 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 as alleged.
Agency Decision
The Agency found that it did not discriminate against Complainant. The Agency concluded that the totality of the evidence failed to show that the Agency subjected her to harassment based on her race, color, sex, disability or EEO activity. The Agency reasoned that the review of her work productivity, as well as consideration of alternative work schedules, were an exercise of her supervisors' legitimate authority. The Agency also reasoned that, "given the context of the investigation that was ongoing concerning her TOW reimbursements, it is logical that management would have taken the actions they did while that investigation was pending." The Agency found that Complainant failed to rebut the reasons proffered by management to show pretext. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that management terminated her telework schedule without any justification other than the supervisor's statement and the Agency decision failed to address her claim that there were two Caucasian employees who had delinquent work and who were not reprimanded or removed from telework. She also argues that the Agency's removal action was procedurally flawed.
On appeal, the Agency argues that her appeal should be dismissed because it was filed more than thirty days after her receipt of its final decision. The Agency also argued that her appeal is without merit.
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 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").
Section 717 of Title VII requires that federal agencies make all personnel actions free of race and sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race, color or sex"). Reprisal is also unlawful under Title VII. Similarly, Section 501 of the Rehabilitation Act bans discrimination against individuals with disabilities in the federal workplace. It also requires an employer to accommodate the known disabilities of a qualified individual with a disability, unless doing so would be an undue hardship.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We will assume for purposes of our analysis that Complainant is a qualified individual with a disability and that Agency management was aware of her EEO activity when Complainant was issued a notice of removal. In this case, we find that the record does not otherwise substantiate the claims.
Specifically, we find that the record evidence does not support her claim that she was denied official time to work on her EEO complaint, told that she could not speak with the EEO office, the union or her immediate supervisor, or denied a maxi-flex schedule that the Agency provided to others.
In addition, the responsible management officials articulated legitimate, non-discriminatory reasons for each of its actions that did occur. The investigation was initiated after an internal investigation concluded that Complainant committed fraud. She was issued a memorandum of removal because of conduct unbecoming a federal employee based on the fraud investigation. There is no evidence that others who were similarly situated were treated better.
For these reasons, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's proffered reasons were a pretext for unlawful discrimination on the basis of her race, color, sex, disability or prior EEO activity. Stated differently, she did not show that the Agency failed to make its actions free of discrimination through evidence proving that a protected basis - in this case, that her race, color, sex, disability and/or prior EEO activity was a factor in its decisions.
Harassment - Claim 2
To establish a claim of hostile environment harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and / or had the purpose or effect of unreasonably interfering with the work environment and / or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep't of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive.
We note that Complainant perceived the alleged events to be hostile and that she disagreed with the Agency's reasoning for denying her request to work an 11 and 1/2 hour daily schedule, initiating an investigation and issuing a notice of removal. However, although Complainant asserted that she was subjected to harassment based on her race, color, sex, and EEO activity, she provided insufficient evidence to show that the alleged incidents occurred as she stated or that the incidents occurred because of the protected bases alleged in her complaint.
Therefore, based upon our review of the record, we find that Complainant has not met her burden of establishing that the alleged events occurred because of her protected bases and / or prior EEO. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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
March 20, 2018
__________________
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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