0120103512
08-06-2012
Conchita Thornton, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Conchita Thornton,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120103512
Agency No. HHS-PSC-0027-2010
DECISION
On August 27, 2010, Complainant filed an appeal from the Agency's August 20, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Management Assistant, GS-503-07, in the Program Support Center, Strategic Acquisition System, Division of Acquisition Management, in the Agency's Rockville, Maryland facility.
Complainant filed an EEO complaint dated November 20, 2009, which was subsequently amended, alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), color (brown and black), disability (discomfort from five major surgeries to the abdomen that included cancer of the uterus, high blood pressure, and border line diabetes), age (53), and in reprisal for prior protected EEO activity when:
1. On October 27, 2009, Complainant was issued a Proposed 14-day Suspension;
2. On October 30, 2009, Complainant claimed her co-worker and management openly discussed obtaining a warrant against her; and
3. On January 20, 2010, Complainant was issued a Final Decision Notice- Suspension; in which she was notified of her 14-day Suspension to occur during the period of February 1-14, 2010.
In a February 1, 2010 letter, the Agency notified Complainant it was accepting issues (1), (2), and (3) for processing. The Agency informed Complainant that if the accepted claims are not correctly identified, she must notify the EEO Office in writing within seven calendar days of receipt of the letter. Complainant did not object to the definition of the accepted issues.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
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. (November 9, 1999) (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").
On appeal, we note Complainant does not challenge the definition of the accepted complaint. To the extent Complainant is attempting to raise any additional issues on appeal, we note only issues (1), (2), and (3) were accepted for processing by the Agency. Moreover, we note Complainant did not challenge the definition of the accepted issues to the Agency while her complaint was pending before the Agency. Therefore, we find any additional issues are not part of the subject complaint and will not be addressed on appeal.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In the present case, the Agency has articulated legitimate, non-discriminatory reason for its actions. With regard to issue (1), the Agency issued the Proposed 14-Day Suspension on October 27, 2009, for disruptive behavior and derogatory/disrespectful remarks to a supervisor. The Agency noted that on September 25, 2009, while Person X, Supervisory Contract Specialist, was holding a meeting with two employees, Complainant walked uninvited into their meeting, and started yelling. The Agency also noted that during September 14, 2009, through September 25, 2009, Complainant made numerous remarks about Person X's weight and was disruptive on September 18, 2009, during a luncheon for employees.
Subsequently, on January 5, 2009, the Agency issued Complainant the 14-Day Suspension (issue (3)) for the reasons stated in the October 27, 2009 proposed notice. The Agency noted it found S1's explanation of the events described to be credible. The Agency noted that Complainant was given the opportunity to reply orally and/or in writing to the proposal notice; however, she failed to do so. The Agency also noted that in issuing the 14-Day Suspension, management considered the nature and seriousness of the offense in addition to the fact that Complainant's behavior and comments had disrupted the workflow in the service center and had caused concern and anxiety among Complainant's co-workers. Additionally, the Agency stated that Complainant had been on notice that disruptive, rude, and discourteous behavior and remarks are a violation of workplace standards. The Agency noted that Complainant had previous disciplinary action including a May 24, 2009 seven-day suspension for communications which were disruptive, bizarre, and of an inappropriate sexual nature.
In response, Complainant stated that the reasons for the proposed suspension and the ultimate suspension were false because S1 was not there to observe the alleged statements about her behavior. Complainant also claimed that she did not have disruptive behavior and she did not interrupt a meeting. Complainant claimed that S1 was acting on behalf of the Director of Strategic Acquisition Services (Director of SAS).
S1 disputed Complainant's contention that she did not observe the alleged statements concerning Complainant's behavior. S1 noted that with regard to the incident occurring in September 2009, she was a few yards away when she heard Complainant's disruptive behavior in or near Person X's office. She stated that Complainant was very loud and would not leave Person X's office. S1 also confirmed that during the week of September 14, 2009, through September 25, 2009, Complainant made numerous remarks about Person X's weight. S1 explained that on September 18, 2009, the office had an open luncheon where management bought pizza for the employees, including Complainant. S1 stated that during the open lunch period, the Complainant came to the lunch room, displayed disruptive behavior, and began speaking in an exaggerated and "manic" manner. S1 also noted that Complainant's Proposed 14-Day Suspension was not ordered by the Director. In her affidavit, the Director of SAS confirmed that she did not order the Proposed 14-Day Suspension and explained that it was issued by S1. Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for proposing and subsequently issuing Complainant the 14-Day Suspension which Complainant failed to show were a pretext for discrimination.
With regard to issue (2), Complainant claimed that on October 30, 2009, after the end of the fiscal year meeting, Person X and the Director of Program Support Center (Director of PSC) were standing in the hallway when the Director of PSC looked in Complainant's direction and made the statement, as he rolled his eyes and said he was going to get a warrant for Complainant. Complainant also stated that a Management Analyst (Person Y) had a conversation with Person X and that Person Y said she was going to get a warrant against Complainant because Complainant hit her and she is pregnant. Complainant also claimed that Person Y was talking with Person Z at the time and that Person Y said that she and Person Z were working on something and Complainant would not be there much longer.
In his affidavit, the Director of PSC refuted Complainant's claim and stated that he did not meet with Person X on October 30, 2009. The Director of PSC stated he never had a discussion about obtaining a warrant against Complainant. Person Y also refuted Complainant's claim. She stated that she did not have the conversation with Person Z as alleged. Person Z disagreed with Complainant's allegation and stated she had no knowledge of the event described in issue (2). Upon review, we find Complainant failed to show by a preponderance of evidence that issue (2) occurred. Moreover, we find Complainant failed to show that she was subjected to a hostile work environment based on her race, color, disability, age, or in reprisal for prior protected EEO activity.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED.
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
August 6, 2012
__________________
Date
2
01-2010-3512
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103512