Deborah Douglas-Slade, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionOct 29, 2009
0120092627 (E.E.O.C. Oct. 29, 2009)

0120092627

10-29-2009

Deborah Douglas-Slade, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.


Deborah Douglas-Slade,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120092627

Agency No. 2006-20690-FAA-02

Hearing No. 570-2007-00837X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 23, 2009 final order concerning an equal

employment opportunity (EEO) complaint claiming 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.

On September 14, 2006, complainant filed a formal complaint. Therein,

complainant claimed that she was subjected to harassment and a hostile

work environment on the bases of race (African-American), sex (female),

and in reprisal for prior protected activity by management beginning in

July 2006.

Following the agency's investigation into the claim, on February 17 and

18, 2009, a hearing was held before an EEOC Administrative Judge (AJ).

After considering the testimony of the witnesses, the AJ determined that

assuming, arguendo, complainant established a prima facie case of race,

sex and reprisal discrimination, the agency nevertheless articulated

legitimate, nondiscriminatory reasons for its actions which complainant

failed to show were a pretext. Regarding the harassment claim, the AJ

found that complainant did not prove she was subjected to harassment

sufficiently severe or pervasive so as to render her work environment

hostile.

The AJ noted that on or about February 18, 2006, complainant's first

line supervisor (S1) became the Program Director, Information Management

Division and complainant's supervisor. The AJ further that on August

14, 2006, S1 issued complainant a leave restriction letter based on her

determination that complainant had used an excessive amount of unscheduled

leave. The AJ found that the record shows that between February 5,

2006 and August 14, 2006, complainant had taken 92 hours of annual leave

and 40 hours of sick leave, and that most of the leave was unscheduled.

The AJ noted in her testimony, S1 testified that one of the issues she

had with complainant was her attendance and use of unscheduled leave.

Specifically, S1 stated that complainant "was frequently absent from

work, calling in at 4:00 in the morning and taking a Monday off - -

and constantly . . . calling in. Her leave usage was incredible during

that time." S1 further stated that the agency has a policy that leave

requests "are submitted in advance and approved in advance unless there's

a proven emergency." S1 stated that in the instant case, complainant

did not call in advance. S1 further stated that complainant's frequent

unscheduled absences disrupted the efficient operation of the office

and burdened other employees with additional work.

S1 stated that she met with the Manager of Employee Relations (M1)

concerning complainant's leave issue. S1 stated that M1 "took my

leave records and she conducted an analysis of the leave itself and she

recommended and helped me draft a leave restriction letter."

Further, S1 testified that on August 25, 2006, she issued complainant

an Opportunity to Demonstrate Performance (ODP) memorandum because

complainant was failing to meet the performance expectations of

her position. Specifically, S1 stated that during the relevant time

complainant was solely responsible for the agency's 508 program.1

The record reveals that from October 2005 through August 2006, the

508 program was identified and rated "red" in the agency's Flight

Plan.2 S1 testified that during the period at issue, the 508 program

was failing and has "been red since May and [complainant] needed to

concentrate more time and effort on the successful completion of her

program goals." S1 stated that contacted M1 concerning complainant's

performance and M1 "reviewed my notes and material and program goals,

and she suggested at this point that it would be best to pursue putting

[complainant] on a formal ODP or Opportunity to Demonstrate Performance."

The record reflects that the August 25, 2006 ODP memorandum consists of an

eighteen-page exhaustive review of complainant's performance deficiencies

for her critical and non-critical outcomes of her performance plan.

The record further reflects that the ODP memorandum set out complainant's

expectations for improvement, including a timeline.

With respect to complainant's allegation that the ODP was an adverse

action, S1 stated "absolutely not." Specifically, S1 stated that the

ODP is "an action to improve the performance and - - demonstrate and

improve the performance of the employee." Moreover, S1 stated that

she did not discriminate against complainant based on her race, sex and

prior protected activity.

The AJ noted that M1 testified that S1 contacted her concerning

complainant's attendance. M1 stated "I did a leave analysis, and we put

this employee on a leave restriction letter. She also had addressed that

there were performance problems, and I had advised her to put her on an

ODP." M1 stated that during the relevant time, complainant "took a lot of

Mondays and Fridays off, it was a pattern, unscheduled leave. She didn't,

you know, put in leave slips prior to approval. Those are all reasons

for placing somebody on a leave restriction letter." M1 stated that in

regard to her performance, complainant "was failing in her performance.

So . . . I recommended that we could place her on an ODP, which we did.

And that outlines. . . her expectations. . . how she's to improve."

M1 testified that an ODP is not considered an adverse action and that

"it's just a way of telling the employee that they're failing and giving

them an opportunity to improve, which [complainant] did improve. She met

her performance, and she did not fail her performance."

The AJ noted that in February 2007, complainant requested a detail

to another agency department or division. The AJ noted that the

Chief Information Officer stated that on March 22, 2007 he approved

complainant's request for detail. However, the AJ noted that on March

23, 2007, complainant voluntarily submitted her resignation from agency

employment.

On appeal, complainant, through her representative, argues that the AJ's

finding of no discrimination was based on an incomplete investigation

record. For example, complainant specifically argues that the AJ "chose

to believe the testimony of the agency and did not regard retaliation

as offensive or abusive. He did not have an adequate ROI [report

of investigation] nor did he want to operate as the "Investigator"

for [complainant's] case." Complainant argues that S1 put her on an

"unnecessary ODP to retaliate against her. Even though, [complainant]

met expectations, the unnecessary ODP states that [complainant] must

continue to demonstrate acceptable performance or she could face removal

from the federal service." Finally, complainant argues that she was

forced "to leave the Federal Government because she was working for

managers who were hostile towards her."

In response, the agency urges the Commission to affirm its final order.

The agency argues that in regard to complainant's allegation that

the AJ erred because he did not take on the role of an investigator,

the hearing process is intended to be an extension of the investigative

process, designed to "ensure that the parties have a fair and reasonable

opportunity to explain and supplement the record and to examine and

cross-examine witnesses." The agency further argues that complainant

was afforded an opportunity to conduct discovery as well as ample

opportunity to present her case; and that she failed to establish that

she was subjected to discrimination or a hostile work environment.

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 a

discriminatory intent existed is a factual finding. See Pullman-Standard

v. Swint, 456 U.S. 273, 293 (1982). We further determine that complainant

has offered no persuasive arguments on appeal regarding the propriety of

the AJ's finding of no discrimination. The Commission determines that

the AJ made a thorough and detailed analysis in his final decision.

Among other things, complainant, on appeal, argued that the agency

conducted an inadequate investigation. We note that in footnote 1 of

his decision, the AJ stated that the investigative report was markedly

deficient and directed the agency to appropriately train investigators.

However, in this case, the AJ held an evidentiary hearing, following

an opportunity for the parties to engage in discovery, which adequately

supplemented the record through the examination and cross-examination of

witnesses3 to permit a reasoned decision on the merit of complainant's

claim.

After a review of the record in its entirety, it is the decision of

the Equal Employment Opportunity Commission to AFFIRM the agency's

final order 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 (M1208)

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), 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 (S0408)

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 (Z1008)

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

October 29, 2009

__________________

Date

1 The record reflects that the agency's "508 program" refers to the 1998

Amendment to Section 508 of the Rehabilitation Act, 29 U.S.C. �� 794d,

which was enacted to eliminate barriers in the federal government in

electronic and information technology for individuals with disabilities.

2 The record reflects that the agency maintains a metric, referred to

as the "Flight Plan," which measures the performance of various agency

departments, divisions and programs under a three-tier rating system:

green (satisfactory performance); yellow (program of concern, potentially

failing); and red (failing performance).

3 It is noted that several witnesses were authorized by the AJ to

testify in complainant's case-in-chief, but she elected to withdraw

these witnesses at the hearing.

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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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