0120160571
05-22-2018
Cristen T.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cristen T.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160571
Agency No. 2015-26035-FAA-05
DECISION
On November 19, 2015, 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 October 21, 2015 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 of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Financial Accountant at an Agency Aeronautical Center located in Oklahoma City, Oklahoma. On January 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of race (African-American), color (Black), disability (heart failure2), and reprisal for prior protected EEO activity (three EEO complaints between June 2013 and August 2014) when:
1. effective December 2, 2014, the Agency suspended Complainant for one day, alleging that she was Absent Without Leave (AWOL),
2. in November 2014, the Agency directed Complainant to file Family and Medical Leave Act (FMLA) paperwork to have an additional telework day while pregnant and awaiting the birth of her baby,
3. the Agency excluded Complainant from office interactions and meetings, and failed to provide her feedback,
4. the Agency denied Complainant's request for an additional telework day, and
5. the Agency applied random policies and practices to Complainant, but not to similarly situated employees.
Investigation
Complainant's Statement
During the EEO investigation, for (1), Complainant stated that the Agency accused her of being AWOL, but she was not AWOL. Complainant stated, at the relevant time, she was at her workstation working on an EEO complaint. For (2), Complainant stated that management's direction to request FMLA was unnecessary and cost her money to obtain medical documentation. Complainant stated that she was pregnant previously while employed with the Agency and did not have to submit FMLA documentation. As to (3), Complainant stated that exclusion from discussions and lack of feedback makes it difficult for her to perform her job duties. Regarding (4), Complainant stated that she asked to telework an additional day for a few weeks because she was having health concerns in addition to her pregnancy. Complainant alleged that her immediate supervisor ignored her requests. Complainant stated that she had to go to work without the additional telework day until she went on maternity leave.
Agency's Statement
The Acting Section Manager (S1) (Asian, no disability, no prior EEO activity) stated that she was aware of Complainant's prior EEO activity. For (1), S1 stated that she did not issue Complainant the suspension. She stated that her supervisor issued the suspension to Complainant. Regarding (2), S1 stated that she encouraged Complainant to contact Human Resources (HR) about FMLA and the leave donation program if she did not have sufficient paid leave to cover her absence. S1 noted, while on maternity leave, in October and November 2014, Complainant contacted HR re-asking if an employee can take more than six weeks of maternity leave without applying for FMLA. S1 stated that Complainant was not directed to request FMLA, but was advised to speak with HR about FMLA. S1 stated Complainant spoke with HR and, on September 19, 2014, submitted FMLA documentation to HR. S1 stated that employees are informed about the availability of FMLA because it protects employee rights.
For (3), S1 stated that she invited Complainant to meetings, but Complainant teleworked four out of five workdays so it was difficult to schedule meetings such that she could attend. S1 stated that she attempted to schedule a meeting for feedback around Complainant's off-site schedule, but was unable to do so. Also, S1 stated that she asked Complainant to come in on a normal telework day to receive feedback, but Complainant did not respond. S1 also stated that there are impromptu interactions that occur every day in the office with staff who are on-site and available with short notice.
Regarding (4), S1 stated, on September 3, 2014, Complainant asked to telework on Wednesdays also, stating she would provide any required medical documentation. S1 stated she asked Complainant to provide any medical documentation she had for review, but she never received said documents. S1 stated that Complainant was admitted to the hospital for delivery two days later. S1 stated that teleworking is a privilege, not a right, so management has the right to review telework requests. S1 stated that Complainant was the only employee teleworking four out of five work days. As to (5), S1 stated "any existing policies and procedures we have are applicable to all personnel, no exceptions."
Summarily, S1 stated that she chose to allow Complainant to telework most days of the week against the advice of Labor Relations. S1 noted that she rewarded Complainant for good work and Complainant received an increase every year. S1 stated that Complainant did not have sufficient leave to take off twelve weeks after giving birth, but she advanced her leave rather than charge her Leave without Pay (LWOP). S1 stated that some employees are happy that Complainant is out of the workplace most workdays. S1 stated that she has tried to have a positive relationship with Complainant, but is unsure of how to make her happy. S1 stated that her relationship with Complainant was stressful.
The Administrative Payments Branch Manager (S2) (Caucasian, White, no disability, prior Agency witness) stated that she was aware of Complainant's prior EEO activity. Regarding (1), S2 stated that she made the decision, after consulting with Labor and Employee Relations, to suspend Complainant for one day for unprofessional conduct and failure to follow proper leave request procedures. S2 stated that they consulted the Standards of Conduct and Table of Penalties and chose one day over three days. S2 stated that Complainant's protected classes were not the bases for the suspension, and she also cited coworkers who were disciplined between 2005 and 2015. Regarding (2), S2 stated that she was not involved with the FMLA instruction but it is common for supervisors to instruct employees who will be on unpaid leave to apply for FMLA to protect their rights.
A Labor and Employee Relations Specialist (L1) (African American, Brown, no disability, no prior EEO activity) stated, for (1), S2 suspended Complainant for one day based on an email she sent to her supervisor, S1, and for failing to follow proper leave requesting procedures. L1 stated that the Agency follows the guidance of the Human Resources Operating Instructions Table of Penalties. For (2), L1 stated that Complainant inquired about the use of FMLA and the FMLA process was explained to her. L1 stated that Complainant was not directed to file for FMLA. L1 stated that FMLA is designed to protect employees who need to be absent from work for up to twelve weeks.
Pertinent Record
The record contains the pertinent documents that follow.
* An email chain, begun March 7, 2014, in which Complainant asked S1 about the process and payroll codes to claim official time. S1 stated that she would inquire about the process and get back with Complainant.
* An email, dated June 12, 2014, from Complainant to S1 stating that she "left campus to work on [her] EEO case" the day before. Complainant asked for the appropriate procedure and payroll codes to use when working on her EEO case.
* A Notice of Proposed One Day Suspension, dated July 2, 2014, citing "Unprofessional Conduct" and "Failure to follow proper leave requesting procedures." In the Proposal, S2 stated that Complainant sent her supervisor, S1, a May 30 email that was "unprofessional in nature," alleging a conspiracy by S1 and that S1 did not care about Complainant. The second charge pertained to the June 12 email where Complainant alerted S1 to her absence or use of official time after-the-fact. S2 sustained the Proposal in a decision, dated October 16, 2014.
* Complainant's Response to the Notice of Proposed One Day Suspension, dated July 9, 2014. Complainant stated that she believes her May 30 email to S1 was "misperceived or misunderstood." Further, Complainant stated that she requested official time policies and procedures from S1, but they were not provided. Also, Complainant stated that she used flex time after core hours to work on her EEO case at her workstation.
Post-Investigation
Following the EEO 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 or an immediate final agency decision. Pursuant to 29 C.F.R. � 1614.110(b), the Agency issued a final decision. The decision dismissed (2) to (5) for untimely EEO contact, pursuant to 29 C.F.R. � 1614.107(a)(2). As to (1), the one-day suspension, the Agency concluded that Complainant failed to prove that it subjected her to discrimination as alleged. The instant appeal from Complainant followed. On appeal, Complainant stated that she initiated EEO contact in November 2014 while she was on maternity leave, however, the Agency did not respond until that December.3
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").
We are reviewing the entire complaint of disparate treatment and hostile work environment on the merits. The record contains a complete investigative record for all five incidents, and Complainant requested a final agency action rather than a hearing. Further, an entire hostile work environment claim is actionable if at least one incident that is part of the claim occurred within the filing period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Here, the one incident, which the Agency viewed as timely and reviewed on the merits, is the December 2 suspension.
Disparate Treatment and Hostile Work Environment
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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
For (1), S2 stated that she consulted with Labor and Employee Relations and decided to issue Complainant a one-day suspension for unprofessional conduct and failure to follow proper leave request procedures. S2 stated that Complainant sent her supervisor, S1, an inappropriate email and informed S1 of her absence from the office after-the-fact. Regarding (2), S1 stated that she advised Complainant to consult with HR about FMLA and the leave donation program if she planned to use unpaid leave while on maternity leave. S1 and a Labor & Employee Relations Representative stated that Complainant was not directed to file for FMLA, but was provided information on the topic to protect her rights. S1 stated Complainant submitted FMLA documentation to HR on September 19, 2014. As to (3), S1 stated that Complainant was off-site (teleworking) four out of five workdays so it was difficult to schedule meetings when she was on-site. In addition, S1 stated that some meetings or discussions were impromptu, which also made it difficult to include an off-site employee. S1 stated that she invited Complainant to meetings and tried to set up an appointment to provide her feedback. Regarding (4), S1 stated that she informed Complainant she could submit any documentation she possessed for review to request an additional telework day. S1 stated that she did not receive any documentation, and noted that Complainant was admitted to the hospital for delivery two days after she requested an additional telework day. S1 stated Complainant was the only employee who teleworked four workdays per week. For (5), S1 stated that Agency policies and procedures apply to all staff. S1 acknowledged that she and Complainant had a stressful relationship.
Further, to the extent Complainant alleged that the actions also created a hostile work environment, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Official Time
Notwithstanding our finding of no discrimination. Reporting of use of official time after-the-fact was an issue that led to the one-day suspension and the record revealed that the Agency and Complainant were not completely clear on how official time works.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides, in pertinent part, that "[i]f the complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information." A Complainant and an Agency should reach an agreement about the amount of official time to be used prior to the complainant's use of such time. EEO Management Directive for 29 C.F.R. Part 1614 (MD-110), 6-16 (revised August 5, 2015). Further guidance about official time may be found at Chapter 6, Section VII.C of the MD-110, which is available at www.eeoc.gov.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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 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. 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
May 22, 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 record reveals, during the relevant period, Complainant was pregnant and experienced elevated blood pressure and irregular heartbeats during her pregnancy. Subsequently, from September 5, 2014 to December 1, 2014, Complainant was on maternity leave.
3 The EEO Counselor's Report states that Complainant initiated EEO contact on December 2, 2014, which is the day Complainant would have returned to work after maternity leave and the one day suspension.
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