0120112515
07-11-2014
Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120112515
Hearing No. 450-2008-00321X
Agency Nos. HS-08-CIS-002181, HS-08-CIS-007279
HS-09-CIS-000241 and HS-09-CIS-004883
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 10 and 14, 2011 final orders concerning the four captioned EEO formal complaints that claimed unlawful 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
During the period at issue, Complainant worked as an Adjudications Officer, GS-1801-12 at the Agency's Texas Service Center (TSC), U.S. Citizenship and Immigration Services (USCIS) in Dallas, Texas.
Agency No. HS-08-002181
On October 16, 2007, Complainant filed a formal complaint (hereinafter referred to as "Complaint 1"). Therein, Complainant claimed that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
a. on June 30, 2007, she arrived to work overtime on a Saturday but as a result of alleged harassment, she left after six hours. As she had expected to work twenty hours that weekend, she lost fourteen hours of overtime;
b. on July 2, 2007, during a confrontation between the Director and a co-worker, the Director accused Complainant of being the "instigator," and when she objected, he replied whether she had "ever heard of guilt by association;"
c. on July 2, 2007, the Assistant Center Director (ACD) held a "secret meeting where she allegedly slandered Complainant. ACD allegedly requested employee statements to "justify [Director's] violent behavior that day." TCS Security Officer participated in this meeting and collected employee statements against Complainant;
d. on July 28, 2007, the TCS Security Officer indicated that the Agency would continue to withhold issuance of her officer credentials; and
e. on September 5, 2007, the Director gave monetary awards to employees who worked more than eight hours over the weekend of June 30 - July 1, 2007, which happened to be the weekend Complainant left without completing the full amount of intended hours due to the harassment by a supervisor [referenced above in claim a].
Agency No. HS-08-CIS-007279
On September 25, 2008, Complainant filed a formal complaint (hereinafter referred to as "Complaint 2"). Therein, Complainant claimed that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
a. on July 1, 2008, she was placed on leave restriction, which was subsequently rescinded when she provided the supervisor had falsified her facts in a leave restriction letter;
b. on July 18, 2008, the Deputy libeled her when she described Complainant as an officer who lacks integrity, work ethics, and trust; and
c. in August 2008, she was shut out of communications by TSC Management, including Complainant's second level supervisor and the Deputy, regarding questions essential to the performance of her work, and the use of government telephones and required her to report them to the former USCIS Acting Director.
Agency No. HS-09-CIS-000241
On December 3, 2008, Complainant filed a formal complaint (hereinafter referred to as "Complaint 3"). Therein, Complainant claimed that the Agency discriminated against her in reprisal for prior EEO activity when:
a. on July 8, 2008, she was issued a Letter of Counseling for her excessive usage of sick leave, including annual leave in lieu of sick leave, following rescission of USCIS's July 1, 2008 leave restriction letter;
b. on August 1, 2008, she was issued a Letter of Counseling regarding her communication with management related to sick leave requests;
c. on September 8, 2008, she was issued an Official Reprimand for alleging providing false facts in a complaint to TSC and USCIS management;
d. on September 16, 2008, the Deputy breached her privacy by disclosing to Complainant's co-worker that Complainant had been issued a letter of reprimand.
Agency No. HS-09-CIS-004883
On May 28, 2009, Complainant filed a formal complaint (hereinafter referred to as "Complaint 4"). Therein, Complainant claimed that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
a. on April 3, 2009, the Director subjected her to hostility when he used profanity with her, specifically, the words "bull shit" and chicken shit;"
b. on April 15, 2009, she was notified that she was suspended for three (3) days effective April 17, 2009;
c. on May 4, 2009, she learned that she had been charged as Absent Without Leave (AWOL) on April 14, 2009;
d. the Manager has subjected her to continuous harassment in relation to her requests for EEO Official Time, denying requests for official time and forcing her into predicaments, then also denying annual leave requests to work on complaints and proceeding to place her on AWOL and then suspending her for seven days;
e. on June 10, 2009, she was issued a letter for a proposed seven (7) days suspension;
f. on August 13, 2009, she was issued a counseling letter and falsely accused of being disrespectful to management and other co-workers; and
g. on August 21, 2009, the Director denied her an opportunity to defend herself by not responding to the Union President letters requesting information on behalf of Complainant in order to defend herself in the proposal to suspend, and then proceeded with the suspension and falsely claiming Complainant failed to submit a response in her defense.1
At the conclusion of the investigations, Complainant was provided with copies of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The record reflects that the AJ assigned to the case consolidated the complaints at the hearing stage.
On August 2-4, 9, 10 and 12, 2010, a hearing was held before the AJ. After considering the testimony of the witnesses, the AJ found no discrimination. Regarding Complaint 1, the AJ determined that even if a prima facie case of sex and reprisal discrimination was "minimally established," that management witnesses articulated legitimate, nondiscriminatory reasons for the actions taken which Complainant did not establish by a preponderance of the evidence were pretextual.
Regarding Complaints 2 - 4, the AJ found that Complainant did not establish a prima facie case of sex discrimination. The AJ found, however, that Complainant established a prima facie case of reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
As a preliminary matter, we first note that there appears to be considerable confusion regarding the processing of the four complaints for a hearing. However, we discern the following disposition of the subject claims with the record before us. Specifically, a fair reading of the record reflects that after Complainant requested a hearing, the assigned AJ conducted a 6-day hearing. Following the hearing, the AJ issued two separate decisions. Specifically, the AJ issued an undated decision for Complaint 1, under Hearing No. 450-2008-00321X, and a separate undated decision for Complaints 2 - 4 under the same Hearing No. 450-2008-00321X. Thereafter, the Agency issued two separate final orders implementing the AJ's finding of no discrimination which is the subject of the instant appeal.
Next, we address the Agency argument that Complainant's appeal was not timely filed. We note that in its brief, the Agency argued that the office of Complainant's attorney received its March 10, 2011 final order on March 13, 2011 but that Complainant did not file her appeal until April 14, 2011 which was beyond the 30-day filing period. Specifically, the Agency asserted that the Postal Service green card receipt indicated that item 7010 1870 0002 2384 indicated that Complainant's attorney received its final order on March 13, 2011. There is no evidence, other than this generalized reference to a Postal Service green card receipt number, indicating that Complainant's attorney received the final order on the above date. Where, as here, there is an issue of timeliness, "[a]n Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the Agency has the burden of providing evidence and/or proof to support its final decision." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Therefore, we find that Complainant's appeal was timely filed.
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.
Complaint 1
With respect to claim a, the AJ noted that TSC employees had been solicited to work overtime on the weekend of June 30, 2007 - July 1, 2007 for a particular project in order to meet a deadline. Several employees, including Complainant, volunteered to work that weekend. The AJ further noted that ACD was in charge of all employees. The AJ noted that to ACD, she stated that as she made the rounds that overtime morning, she noticed Complainant was on the telephone, and on a second time, she interrupted Complainant's conversation to inquire what she was doing. ACD stated that she had the Supervisory Immigration Service Officer instruct Complainant to go to the building next door to perform tasks outside her regular work load. The AJ noted rather than go to the building next door, Complainant left work. Complainant's departure meant she earned only six hours of overtime, although Complainant had hoped to earn up to twenty overtime hours that weekend.
ACD testified that during the weekend of June 30, 2007 - July 1, 2007, she was the "manager in charge trying to make sure everything flowed, trying to make sure where people was needed, we send them where they were needed, just monitoring what was being done and assisting wherever necessary." ACD stated that Complainant "came to my attention because I was walking the floor to see what was being done, who was working on things, how work was flowing, and when I walked through the first time [Complainant] was on the telephone so I kept going, and when I came back through on my second round to see what was going on she was still on the phone, and that's what brought it to my attention."
ACD stated that she then asked Complainant why she was on the telephone, and she told her that "she was on a call, and I was saying, we need to be doing this week at this time, and she looked at me, but I think she looked at me, and then she said, 'well, I'll get back to work'...I told her then that we needed her - - when she got off that I needed her to go to the building because that's where the work was going to be that she could do because she wasn't adjudicating or doing IVAMs [immigration visas]." ACM stated that she has no recollection when or why Complainant left work that day.
The Supervisory Immigration Service Officer testified that the weekend of June 30, 2007 -July 1, 2007, the Agency had a project, identified as the 'I45 B project." The Supervisory Immigration Service Officer stated that the Agency "had a specific numerical limitation that we were required to meet within a specific deadline." The Supervisory Immigration Service Officer stated that while Complainant worked on June 30, 2007, she did not observe her on the phone. The Supervisory Immigration Service Officer further stated that she told ACD that "we were to tell the employees who were not trained on processing the EB 485 cases to come next door and help process the cases next door, which was at 7701, and also there were some employees who were not trained on either form type of 485 so they were sent downstairs to the background check team. I was told to send the employees next door, which was 7701, and so I had mentioned to [Complainant] about coming next door to 7701." The record reflects that Complainant did not go to 7701, and instead she left work for the day.
Regarding claims b and c, the AJ noted that on July 2, 2007, Complainant arrived a few minutes late to a division meeting with her three co-workers and they sat together at a table in the back of the room. The AJ noted that during the meeting, one of Complainant's co-workers (CW1) was perceived by several supervisors and fellow employees to have behaved inappropriately in the manner in which she had addressed management, including her newly assigned supervisor. Following the meeting, several supervisors and ACD complained to the Director about CW1's conduct. The AJ noted that the Director then asked the union vice-president and several managers to accompany him because he was going to instruct CW1 that she would be moved to a different work area. The AJ noted that that the Director spoke harshly to CW1 about her conduct during the meeting while Complainant and other employees observed their conversation. The discussion was moved to D1's office with several people present, including Complainant. During the meeting, the Director pointed at others sitting at CW1's table as being disruptive and he called Complainant an instigator.
The AJ further noted that the following day the Director had a meeting with union officials, including Complainant, about other business but when the prior day's incident arose, D1 again called Complainant an instigator. The AJ noted that the Director asked Complainant whether she had ever heard of "guilt by association." The AJ noted that ACD solicited statements from employees in attendance at the July 12, 2007 division meeting to establish a record of what had occurred, because the division meeting had obviously become a concern. Furthermore, the AJ found no evidence in the record that there was a "secret meeting" where Complainant was slandered.
ACD stated that on July 12, 2007, she conducted a unit meeting when Complainant and three officials showed up late. Specifically, ACD stated "we had started the meeting when all of a sudden four individuals came into the meeting late and was very loud when they came in and laughing; and I was going on, trying to go on through the meeting, and they kept getting louder and louder. We started going over some processes that we were going to have, and there were some questions concerning - - because people had a concern that on one of the forms that we were going to have to fill out they had to put Social Security numbers...one of the individuals that came in late along with [Complainant] got up and was just grandstanding, saying she didn't want to put her information on there. She didn't trust anybody...and so we just said, 'hey if there [are] issues with this, then you don't have to put it on there.' They continued to be laughing, makes noise, so we even had to say, 'hey, we can't hear.' People were getting agitated because they couldn't hear from all the noise they were making in the corner, and then we finally - - when the meeting was closed because of all the grandstanding individuals continued to say ...[that] they could not believe how rude the individuals were when they came into the meeting."
ACD stated that following the meeting, the supervisors shared their concerns with her about Complainant and other three officers. ACD stated that she told the supervisors "if you had something to say about it . . . you could just voluntarily write up what you saw at the meeting, what happened, and what you felt about it." ACD stated that she and the supervisors then informed the Director what had happened during the meeting. ACD stated that the Director "just took in our concerns, because I let the supervisors talk and tell him how they felt, and he just - - he took in the concerns and talked to the people because he was new over here too, and he really wanted to work with all the people and wanted to know their concern. So he had addressed their concerns and said, I understand." ACD stated that at that point, the Director did not indicate whether he would take any action.
ACD stated that after meeting with the Director, people "were still on the floor talking about it, and that's when I informed the people if you have a concern you can go ahead and put it down in writing..." ACD stated that during the relevant period, she collected the supervisors' statements through e-mail. Specifically, ACD stated "my thing was just to document what happened that day, to show how disrespectful the individuals were." ACD stated that she later handed the statements to the Deputy Director and SM.
With respect to Complainant's allegation that ACD held a secret meeting on July 12, 2007, ACD denied it. Specifically, ACD stated "there [were] no secret meetings."
With respect to Complainant's allegation that there was a confrontation between the Director and CW1 following the July 12, 2007 meeting, ACD stated "everything was hearsay." Specifically, ACD stated "all I had heard was that there was a confrontation. I don't know what it was or anything so I don't know. I was not there so I don't know." The record reflects that the Director held a teleconference with CW1 and ACD. ACD testified that she did not hear the Director labeling Complainant as an instigator.
The Director testified that he attended portion of the July 12, 2007 meeting and "I left the meeting, and then later [ACD] called me and said could they come up and visit me, and I said, yeah, and she and all of her supervisors came into my office." The Director stated that ACD and her supervisors were upset because the disruption involving Complainant and four officials "continued after I left, and they were upset about that. I assumed from that, that it was out of the ordinary. I think they felt like the people being disruptive were certainly disrespectful of the managers and supervisors trying to conduct a meeting."
The Director stated that he then went to get the union president and the Chief of Staff to go with him to see CW1. Specifically, the Director stated that he talked to CW1 and "I told them I didn't appreciate the fact that they were disrespectful in the meeting." The Director stated that a named officer had told Complainant and another official that he was on his way to see CW1 and they gathered around CW1's desk. The Director stated that "it became apparent to me they were trying to induce me to get a little bit too close because I was well aware of the situation in the [named employee] investigative report, and so [CW1] kind of backed into her cubicle, and I stepped about halfway into it. I never completely entered her cubicle, and meanwhile all the others are pressing around me to encourage me to go further." The Director stated that they had a discussion concerning the July 12, 2007 meeting "for a while, and I will say that I was animated in that discussion. When I talk I gesture, and I gestured."
Further, the Director stated that after a while he decided to bring CW1 into his conference room to finish their conversation along with the Chief of Staff. The Director stated "I guess we finished saying what we were saying. I really don't have any memory of the rest of that meeting, but then they went back to their cubicle."
With respect to Complainant's allegation that the Director called her an instigator, the Director acknowledged making the statement. Specifically, the Director stated he referred Complainant as an instigator "because she was sitting there feeding - - it was apparent that the part that I witnessed - - it was apparent that [CW1] was feeding off something being said in the background. I could hear mutterings and that sort of thing, but it was a large room, and I could not distinguish any words."
The Supervisory Immigration Service Officer stated that she attended the July 12, 2007 meeting in which Complainant and two or three officers "who I guess you could say kind of disrupted the meeting." Specifically, the Supervisory Immigration Service Officer stated that Complainant and the officers were unprofessional. The Supervisory Immigration Service Officer stated that Complainant and the officers "can ask questions. It was just the manner in which they asked the question, it was unprofessional in my opinion and rude." The Supervisory Immigration Service Officer stated that following the meeting, she and other supervisors shared their concerns with ACD that "we wanted the employees to be spoken with because we did not like the way they carried themselves in the meeting. We thought it was very unprofessional, and some of the employees had also voiced their opinion that they did not agree with the way the employees had spoken during the meeting."
Further, the Supervisory Immigration Service Officer stated that she provided ACD a memorandum concerning the July 12, 2007 meeting because "[ACD] asked m e if I would write one since I was at the meeting." The Supervisory Immigration Service Officer stated while ACD did not tell her what to write, she just told her to "tell what happened."
SM testified that while she did not attend the subject meeting, she took statements from ACD, S4 and two named management officials. SM also stated that she received statements by email which were collected by ACD and "then they were given to me." SM stated that after a review of the record, Federal Protective Services did not bring any charges against S4.
Regarding claim d, the AJ noted that later in July 2007, Complainant formed the opinion that the TCS Security Manager (SM) had not issued her the new credentials on July 28, 2007, due to retaliation. The AJ noted that the records reviewed by staff processing the new credentials showed that Complainant had not turned in certain prior credentials. Complainant was told that she needed to complete paperwork explaining the situation and submit it through her supervisory chain. The AJ noted that the process took a long time culminating the Director's involvement. The AJ further noted that the Director instructed SM to issue Complainant her new credentials.
SM stated that during the relevant time, employees were issued new credentials because "we were changing over from the Department of Justice to the Department of Homeland Security, and so we were issued new credentials for Department of Homeland Security." SM stated that the employees' new credentials are used for "whenever there's travel included, going to any type of training, if they're going on detail somewhere. Those are the only times that they really need their cred[entails] or their shields." SM stated that her responsibility was "to oversee that the new credentials were issued out to employees and that all the data was updated in the database that we were provided." SM acknowledged that not all employees received their credentials at the same time for different reasons.
SM stated that in Complainant's case, she learned that she had one badge that was unaccounted for from her prior assignment. SM directed S1 to have Complainant fill out a report of survey (ROS) concerning her missing badge. Specifically, SM stated that ROS is a process that employees need to follow if their badges were missing or lost. SM stated that ROS is "part of the personal property handbook, and in that handbook it states that any time there's lost sensitive items, whether it's stamps, credentials, shields, that it's the employee's responsibility to fill out a report of survey."
SM stated that Complainant notified her that she was never issued a badge at TCS and "before she left her last duty assignment that she turned that stuff in." SM stated that she then informed Complainant that "new badges would not be issued until the ROS was done, and from there we would be instructed on how to proceed, meaning safety and security, whether or not to issue the new ones or not." SM stated that she received an email from Complainant "inquiring as to why her badge and shield continued to be withheld, and then my response back to her about her ROS and then a response from me to [Complainant's immediate supervisor] saying that I still have not seen a copy of the signed ROS." The record reflects that Complainant eventually received her credentials. SM denied taking any steps to delay the issuance of Complainant's credentials.
The Director testified that he interceded on Complainant's behalf to try to get her credentials "but I don't know what the reasons were for the - - for her not having received them, but every official is entitled to them." D1 further stated that he probably asked SM about issuing Complainant her credentials and "I may have asked why they haven't been - - I don't remember any conversation, but it's logical that I would have had that conversation, and in the end I must have instructed her to issue them because I didn't see a reason for not doing so." Furthermore, the Director stated he was not sure if Complainant received her credentials "but I assume that she did or I'd have continued to hear about it."
The former Security Specialist (SS) testified that during the relevant time, not all employees received their credentials without any problems. SS stated that Complainant was one of them. SS stated "once you get all the information and you take the picture and you get the signature it has to load that particular record to headquarters. Sometimes they went through. Sometimes they didn't. We really don't know [who] did and [who] didn't at the time until later when people would tell us they didn't have them." SS stated that he recalled SM asking him if Complainant's credentials "went through, and there's really no way of telling if it did or not. We would just have to submit and wait for them to come in." Furthermore, SS testified that he never observed SM doing anything to slow down the processing of Complainant's credentials.
Regarding claim e, the AJ noted that on September 5, 2007, management issued monetary awards to employees who had worked at least eight hours of overtime during the weekend of June 30, 2007-July 1, 2007. The awards were based on the number of hours worked with those who worked from 8 to 11.75 hours earning $250 monetary awards, and those who worked 20 to 23.75 hours earning $1,000 monetary awards. The AJ determined that because Complainant had worked about six hours of overtime, she did not receive an award for that weekend.
The Director testified that he issued monetary awards to employees who worked at least eight hours of overtime during the weekend of June 30, 2007 - July 1, 2007. D1 stated that the monetary amount was "based on various cutoffs in the numbers of hours worked. Based on hours worked basically." The Director further stated that he did not give Complainant an award because "I never saw [Complainant] that weekend."
Complaint 2
Regarding claim a, the AJ determined that this instant claim is intertwined with claim a of Complaint 3 and both claims would be addressed herein. The AJ noted that during the relevant period Complainant's former first level supervisor discovered that Complainant had not been giving her time sheets back to the unit's timekeeper for approximately one year. Complainant had made a side arrangement with the timekeeper who would return the timesheets to Complainant after processing them, which was contrary to the Agency's regular practice. The AJ noted that in the process of organizing Complainant's timesheets, the former first level supervisor noted a pattern to Complainant's absences where she would "flex the first Monday of the pay period then take leave for the first Tuesday and then flex out on the first Wednesday of the pay period." The former first level supervisor noted that Complainant tended to be out at least the first three days of the pay period by using a combination of flextime and sick and/or annual leave.
Further, the AJ noted that the subject leave restriction letter had been prepared by Human Resources and the former first level supervisor discovered inaccuracies in the letter when she met with Complainant. The AJ noted that the letter incorrectly stated that the former first level supervisor had given Complainant's prior counselings. During her testimony, the former first level supervisor stated that there was a part in the leave restriction letter "where it says where I have discussed it, it should have said where [Complainant] had been previously discussed with. It was another supervisor who had spoken to her in the past about her leave."
The AJ noted that the former first level supervisor discussed this matter with the second level supervisor and they agreed to rescind the leave restriction letter, replacing it with a letter of counseling so that the record would be clear.
Complainant's second level supervisor testified that the leave restriction letter was issued "in response to an identified leave pattern that [Complainant] was following where she was effectively engaging in a pattern of leave abuse where she repeatedly taking sick leave on Tuesdays."
Regarding claim b, the AJ noted that on July 18, 2008, the Deputy denied Complainant's application for telecommuting. The record reflects that the Deputy stated that Complainant's recent counselings and reprimand led her to conclude that at that time Complainant did not meet the requirements of the telework because she did not exhibit "integrity and work ethnic" nor had she demonstrated the attributes of "trust and integrity."
The AJ further noted that in her memorandum, the Deputy cited to Complainant's record within the preceding few months. In April 2008, Complainant was counseled for emailing her colleagues that another colleague had filed an OSI complaint. The AJ noted that the Deputy determined that the filer of these complaints had the right to keep them private. In May 2008, Complainant was counseled for not regularly attending division meetings during the past year. In June 2008, Complainant was reprimanded for excessive personal telephone use during work hours and finally, in July 2008, Complainant was counseled for a pattern of absences.
During her testimony, the Deputy stated "we have you a lot of freedom in the workplace at the Texas Service Center, and with those freedoms we need for you to be compliant with the rules, the business rules that we have, and when you've repeatedly not compliant with the business rules it impacts our trust in you, and it is a reflection on your work ethics. Clearly if you do not attend meetings for a year that is a reflection. ... I mean - - and, frankly, from my perspective when I saw this, it was also a reflection on management who didn't figure it out for a year, but clearly there's an issue if you are not attending your division meetings for a year. They're important."
Regarding claim c, Complainant sent an email to the Acting Director in June 2008 stating that her second level supervisor was not responding to her concerns about certain processing issues. The record further reflects that Complainant's inquires were assigned to a named Agency official who responded to Complainant in a letter dated June 24, 2008. The AJ determined that the Agency official "explained in a clear, concise manner that the alleged processing irregularities were not as the Complainant perceived them and that Complainant had not been singled out for telephone use review."
Further, the AJ determined "undoubtedly, with [union representative's] cooperation, the Complainant's supply issues must have necessarily have diminished by the time of the September 2nd call with the Acting Director's [assistant], occurred. The Complainant did not identify at the Hearing which specific supplies from her list, which included a feather duster, had not been provided."
Complaint 3
Regarding claim a, the record reflects that the AJ addressed the instant claim along with claim a of Complaint 2 as stated above.
Regarding claim b, the AJ noted that on July 30, 2008, Complainant was ill and left a voice mail for her former first level supervisor indicating her need for leave. The AJ further noted that Complainant also emailed her union representative asking that she ensure that her former first level supervisor and second level supervisors were aware that she was requesting leave. The record reflects that when Complainant reported to work, the former first level supervisor asked her to submit a leave request form, Complainant felt threatened by this request and asked her union representative to deliver the form to the former first level supervisor.
The AJ noted in the August 1, 2008 letter of counseling, the former first level supervisor instructed Complainant to communicate requests directly to management and not through the union or co-workers. The AJ determined there was no evidence that the letter of counseling was anything other than the former first level supervisor's attempt to establish her expectations of Complainant.
The second level supervisor testified that the counseling letter concerning Complainant's leave usage was not "considered discipline at all. It's considered - - I mean, really what this is a record of counseling that is orally given to the employee, and the reason we make a record of it is simply to establish that the counseling occurred."
Regarding claim c, the AJ noted that on September 5, 2008, the Deputy issued Complainant a reprimand for "providing false information, misstatement or concealment of material facts in connection with her employment." Specifically, the Deputy asserted that while Complainant gave the impression to the Acting Director's assistant that her requests for supplies had gone unheeded, her union representative expressly emailed Complainant that she would assist her with her supply needs.
Regarding claim d, the Deputy denied breaching Complainant's privacy by disclosing to Complainant's male co-worker that Complainant had been issued a letter of reprimand. The record reflects that the Deputy had issued the male co-worker a 3-page letter concerning his alleged disregard of her directive regarding his use of broadcast email. The second and third pages of the letter contained the following header "Reprimand [male co-worker] False Facts in Complaint." The Deputy explained that a Labor Relations Specialist who drafted the male co-worker's letter had left Complainant's name in the header. The Deputy testified that she did not catch Complainant's name when she read the letter and "I've learned because I proofread on the computer, and it's like the gray header part, and I just totally didn't even - - I didn't catch it so it would be my responsibility because I should have caught it when I was proofreading."
Complaint 4
Regarding claim a, the Director acknowledged using the word "chicken shit." The Director stated that on April 3, 2009, Complainant asked him to sign and date his receipt of her response to a proposed discipline and he complied. Specifically, the Director stated that Complainant came in his office and "apparently there was - - it was due on a certain date by a certain time. She came in. I must have been the only one in the office. She shows up at my door, and I said, okay, I'll accept it, and I signed for it. She then wanted me to indicate the hour that I signed for it, and I believe I said I'm not so chicken shit as that."
The AJ determined "in any event, certainly [Director] could use a refresher course about refraining from cursing at the workplace, but because others, including [male co-worker] and [Deputy], recounted hearing him use profanity in divergent circumstances that included men and women, it is unlikely that [he] sought to create a hostile work environment for the Complainant when he expressed displeasure at her apparent belief that he would lie about when he received the document from her."
Regarding claim b, the record reflects that on January 9, 2009, Complainant used the Agency's electronic mail system to send an email from the union president to all bargaining unit employees in the TCS without management's authorization. Complainant was previously counseled about replying to all in response to management's broadcast emails. The AJ determined that Complainant's belief that the Deputy's email prohibited her from using "reply all" in emails to the division but allowed her to forward emails to the entire TCS "seemed to ignore the clear import of [Deputy's] instructions and explanation."
Regarding claim c, the record reflects that Complainant was partially charged AWOL on April 14, 2009 because she was absent from work without providing notice to management that she would not be at work that day. Complainant also missed a mandatory division meeting without authorization from management on that date.
Regarding claim d, the AJ noted that Complainant felt that her second level supervisor scrutinized her official time requests unnecessarily and did not grant her sufficient time to deal with her EEO complaints. The AJ determined that a review of the record reflects "while the Complainant felt that she was being scrutinized by management, what was often the case was that at times the Complainant disregarded prior instructions. This seemed to be a classic case of a power struggle between an employee and her supervisors/management."
Regarding claim e, the Deputy stated that she proposed that Complainant be suspended for 7 days "because at the time she was absent, and she didn't have permission and hadn't submitted the requested medical documentation, and then she failed to attend a division meeting as she had been previously instructed."
Further, the Deputy stated that prior to proposing that Complainant being suspended for 7 days, she consulted with "our labor relations specialist, and you know, I basically review what has been addressed in the past in order to determine what I think the appropriate action would be to take to stop the behavior, and, you know, particular to this instance there had been counseling. These issues of attending meetings and work attendance, these are repetitive themes with her with counseling, and it's something we addressed."
Regarding claim f, the record reflects that on August 13, 2009, Complainant's current supervisor issued her a record of oral counseling based on the emails that Complainant had sent to her second level supervisor and other management officials which were "disrespectful and /or otherwise inappropriate and that demonstrated a general lack of respect for authority."
Regarding claim g, the AJ determined that Complainant's representative at that time had made a request for information which he believed was not sufficiently answered by the Agency before the deadline to respond to the proposed discipline. The AJ noted, however, the Director, had delegated responding to the union's information request to the Labor and Employee Relations unit and "there was no evidence that anyone there bore any retaliatory animus to the Complainant."
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits regarding Complaints 1 - 4. The AJ's decisions are well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. 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 two final orders, 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 (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2014
__________________
Date
1 The record reflects that claims a and d - g were later amended to Complaint 4.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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