0120171152
08-23-2018
Cathy V.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cathy V.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120171152
Hearing No. 570201300967X
Agency No. NPS110599
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 January 5, 2017, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Assistant, GS-7, Step 10, at the Agency's National Park Service (NPS) Office of the Director, Office of the Comptroller, Office of Property and Space Management facility in Washington, DC.
On November 9, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), religion (Baptist), color (White), and age (59) when:
1. Complainant was subjected to a hostile work environment, when:
a. She did not receive equal pay for equal work (ongoing);
b. On April 26, 2011, Complainant was denied promotional opportunities while other coworkers received promotions;
c. In January 2011, her requests for a detail were denied by her supervisor, who stated she wanted "new blood" in the office;
d. In March of 2011, she was denied the opportunity to take home a laptop for Telework; and
e. In November of 2010, Complainant was denied a Blackberry.
2. Complainant was denied a religious accommodation when she was initially denied a Blackberry, later denied a laptop, and the Agency suspended her Blackberry service on March 21, 2012;
3. Complainant was subjected to reprisal for filing a previous EEO complaint, when:
a. On December 20, 2011, she was denied a performance award after she refused to sign her Employee Performance Appraisal Plan (December 20, 2011);
b. On March 21, 2012, her supervisor took over the program she managed for 16 years; and
c. On March 21, 2012, her Blackberry service was suspended.
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. When Complainant did not timely object, the AJ assigned to the case granted the Agency's September 14, 2016, motion for a decision without a hearing. The AJ issued a decision without a hearing on December 21, 2016. The Agency adopted the AJ decision. This appeal followed.
Claim 1 - Hostile work environment
(1a) Wages - Grade Level
The pertinent record shows the following undisputed facts. Complainant was employed as a Management Assistant, GS-7 (Series 344) within the NPS's Office of the Director, Office of the Comptroller.
In a memorandum, dated September 18, 2006 to the regional Directors, the Comptroller identified Complainant as the "Contracting Officer Technical Representative (COTR) for the contract. Complainant is the only Certified COTR in the Office of Space and Property Management. For 16 years, Complainant managed a budget of "2 - 5 million dollars" and was "the sole point of contact" for the NPS Mail Program. Complainant contends that the only other person ever assigned to manage the Mail Program was a male GS-15 supervisory employee, who retired in 1995. It is undisputed that Complainant did not have supervisory duties. She is contending that her assignment as a GS-7, managing the mail program, resulted in a denial of equal pay. Complainant states that the other programs, such as Space Management Program, the Motor Vehicles Program, Audit Liaison, IT, and Central Supply have COTRs at the GS 12 to GS 14 level. There is no evidence that Complainant applied for these other COTR positions. The record shows that at least one other person agreed that the position Complainant occupied warranted a higher salary. There was no evidence that others were assigned to the same position in Complainant's Mail Management Program, during the period at issue, received a higher salary for the same work.
(1b) Denial of Promotional Opportunities
2009 promotions
Complainant sought EEO counseling in 2011. Complainant identified six others who were promoted by a former supervisor in 2009, but the former supervisor did not promote Complainant. Complainant identified a White Male and a Black Female as benefitting from the promotions. None of the employees occupied the same grade as Complainant or held positions similar to Complainant's position.
Accretion of duties promotion
In July of 2010, an African-American woman became Complainant's supervisor. Complainant informed the supervisor that Complainant's position description did not reflect her present duties. Complainant wanted a higher grade.
The Agency has a policy of promotion through accretion. Her supervisor supported Complainant's interest in obtaining a promotion by accretion of duties. Her supervisor encouraged her to provide her with supporting documentation. Complainant did not follow through with the procedures necessary to warrant an increase in grade through accretion of duties. Complainant did not annotate her duties on the position description as her supervisor had suggested and Complainant cancelled a desk audit that was scheduled for March 11, 2013.
(1c) Detail to the newly created position
Complainant asserts that she was not given the opportunity to be detailed to a newly created position that was opening in her office. Complainant believed the position would have led to a promotion. She stated that she was qualified for the position. Complainant stated that, in January of 2011, Complainant requested to be detailed to the new position. The supervisor told Complainant that higher education was required for the new position. Complainant stated that she reminded the supervisor that specialized experience is not needed for this type of job. The supervisor made other comments as to why she would not detail Complainant. The supervisor stated she wanted "new blood in our office." Complainant stated that she reminded the supervisor that "we were all new blood to her" because "the supervisor had only been with the office for six months." After a few moments discussing the new position, the supervisor stood up, raised her voice loud enough for other co-workers to hear, and ordered Complainant out of her office.
Thereafter, Complainant received an email informing her that, in future meetings, another named employee was to accompany her or another person, if the named individual was not available. Complainant stated that, as of November 2011, her supervisor brought in two students to work in the office. One student was assigned to work in the detail position that Complainant stated she was unfairly denied.
Claims 2 and 1d and 1e - Religious Accommodation / Laptop and Blackberry Service Suspension
The record shows that the supervisor offered Complainant a laptop for teleworking. Complainant initially refused the laptop, citing religious objections to having Internet access in her home due to concerns of pornography in the house. Complainant asked to telework with a Blackberry, instead, which was allowed.
Several months later, Complainant sought the laptop again. The supervisor eventually provided the laptop, but the supervisor told Complainant to return the Blackberry. Complainant did not comply with the instruction. Three months later, the Agency discontinued her Blackberry service. The Agency cited unauthorized, personal charges to the service.
The Agency refused to provide the usage records. Therefore, for purposes of our analysis, we will presume that the evidence which the Agency withheld in discovery, was adverse to the Agency's interests, and that Complainant had not used the Blackberry in an unauthorized manner.
Claim 3: Reprisal - Awards, and Duties
Regarding the claim of retaliation against her when the Agency denied her a performance award when she refused to sign her Employee Performance Appraisal, the undisputed evidence shows that Complainant did receive the award.
With regard to the claim that Complainant was retaliated against after her supervisor took over her duties, the undisputed record shows that a contracting officer in Denver had reported to the supervisor that Complainant had threatened the contracting officer. Between October of 2011 and January of 2013, Complainant's supervisor thereafter took over some aspects of the mail program. The supervisor believed that Complainant had engaged in unprofessional, erratic and unethical conduct surrounding the award of the mail contract.
The Decision
The AJ stated, "because Complainant's request for an extension was untimely without good cause, I denied Complainant's second request to extend the deadline to file her opposition to the Agency's summary judgment motion."
The AJ found that the parties in this case have had ample opportunity to engage in discovery. The AJ stated that the record before her consists of the Report of Investigation and the parties' pleadings. She found that the investigative record was adequately developed and there were no genuine issues of disputed material fact in the case.
Specifically, the AJ found that claim 1a fails under Title VII and the ADEA, because Complainant failed to identify any similarly situated employee of a different race, color, religion, sex or of a younger age, who was paid better. The sole comparator managed the mail program among his supervisory duties prior to his retirement in 1995. The AJ stated there was no evidence that she performed work of the same skill, effort and responsibility as the supervisory employee, grade 15, with whom Complainant compared herself. The AJ stated that the record is devoid of any evidence suggesting a similarly situated employee was paid more than she for performing as a Management Assistant.
Next, the AJ found that there was no evidence suggesting the reason she was not afforded an accretion-of-duties promotion was discrimination and that there is no evidence in the record suggesting that she applied for any other higher graded positions. The AJ found that there was a lack of any evidence of a nexus between the alleged discriminatory actions and any of Complainant's EEO characteristics. The AJ concluded, "even assuming Complainant had established a prima facie case of reprisal, the Agency has offered nondiscriminatory reasons for each of the actions. The AJ found that Complainant offered no evidence that the Agency's documentation of Complaint's performance problems was in any way tainted by a discriminatory motive, nor that the Agency's asserted reason for the supervisor's increased involvement in managing the mail program was pretextual. The AJ found that her Blackberry service was suspended because she was provided a laptop computer and she did not need a Blackberry anymore and because she ran up personal charges after being told to return the Blackberry to the Agency. Further, with regard to the suspension of her Blackberry service, the AJ found that there was no evidence to show the connection between the events and her EEO activity. The AJ concluded that that the Agency more than accommodated Complainant's religious requirements and that summary judgment in favor of the Agency was appropriate.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the AJ incorrectly denied her second request for an extension to file her opposition to the Agency's Motion for Summary Judgment, since the Agency agreed with her request and submitted an approval form from the Agency agreeing to grant Complainant's second extension for filing an Opposition to the Agency's Summary Judgment motion.2 Complainant states that settlement negotiations had been close to fruition when Complainant's counsel withdrew. Complainant contends that, because Complainant's Opposition to the Agency's motion was not filed in time to oppose the motion, "Complainant's 5-year old EEO complaint [was] halted by a denial of a two-day extension by the AJ."
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
We find that the AJ did not err when she refused to grant Complainant's second request for an extension of time to respond to the Agency's motion for summary judgment.
Moreover, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor on the alleged claims. Even if we used an adverse inference because the Agency refused to engage in discovery to find that the Agency did not show that Complainant ran up unauthorized personal charges, this still left the other reasons unrebutted.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the entry of summary judgment was appropriate in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's 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
August 23, 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.
2 The timeline that Complainant provided on appeal also showed that the Agency had not provided to Complainant her requested discovery documents as of August 29, 2016. The record also showed that a previous AJ advised her that a Motion for Sanctions may be filed by Complainant for the Agency's failure to produce the non-selection records. The AJ also stated that a Motion for Sanctions to the Agency may be filed by Complainant for the Agency's failure to maintain the records for the Blackberry usage.
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