Dollie T.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 1, 2016

0120140775 (E.E.O.C. Nov. 1, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dollie T.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120140775 Hearing No. 531-2009-00879X Agency No. HQ0700118SSA DECISION On December 26, 2013, Complainant filed an appeal after receiving an Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision in favor of the Agency2 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. For the following reasons, the Commission AFFIRMS the AJ’s decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, in the Center for Operations, Office of Labor Management and Employee Relations (OLMER) located in Woodlawn, Maryland. On January 17, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African- American), sex (female), and in reprisal for prior protected EEO activity when: (1) on an ongoing basis, she has not been allowed to perform the full scope of job duties contained in her position description and was frequently assigned to perform clerical duties in the front office; (2) leave that had been requested in September 2006, and verbally approved by the Director 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 Agency did not issue a final order. Accordingly, the AJ’s decision was automatically adopted after the forty-day deadline had passed. 0120140775 2 was officially denied on October 27, 2006; (3) she was not selected for promotion to the position of Human Resources Specialist, GS-201-12, which was advertised under Vacancy Announcement Number A-1081; (4) she was charged Absent without Leave (AWOL) on December 28 and 29, 2006; (5) she was suspended from duty and pay status for four calendar days for the period February 15-16, 2007 and February 20-21, 2007; (6) she did not receive a performance award on April 30, 2007. 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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency’s June 9, 2009, motion for a decision without a hearing and issued a decision without a hearing on November 29, 2013. Complainant prematurely submitted her appeal. However, once the forty-day deadline to issue a final order passed, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). UNDISPUTED FACTS In 2004, the Agency altered Complainant’s position title, description, duties, and job series to better meet OLMER’s needs. At that time, Complainant became a program analyst, GS-343- 09. In 2005, the Agency promoted Complainant to a GS-11 program analyst. The position description for a program analyst in OLMER is very broad, and includes duties performed in all three centers that form OLMER: (1) the Center for Program Policy, Automation, and Training; (2) the Center for Operations and Disability Adjudication and Review; and (3) the Center for Negotiations and Litigation. However, a program analyst only performs the duties described in the position description that relate to the center to which he or she is assigned. A program analyst assigned to the Center for Program Policy, Automation and Training could perform duties related to: (1) labor and employee relations policy; (2) Agency-head memorandum of understandings (MOUs); (3) official time; (4) Agency reports; (5) national level union notices and correspondence; (6) special projects and studies; and (7) training and staff development. A program analyst could be assigned to either the policy and program development team or the official time tracking and automation team within the center. Since 2004, Complainant has worked as a program analyst in the Center for Operations. The Center for Operations is one half of the Center for Operations and Disability Adjudication and Review. A program analyst in the Center for Operations could assist in: (1) advising, guiding and processing (at headquarters) employee relations issues; (2) directing service to headquarters components, field operations and Office of Disability Adjudication and Review (ODAR); (3) managing employee relations/adverse and disciplinary actions (e.g., credit card misuse, security sanctions, etc.); and (4) reviewing Agency grievances. 0120140775 3 In accordance with her position description, Complainant’s current duties in the Center for Operations include: (1) timekeeping; (2) coordinating union dues; (3) determining bargaining unit status; (4) finalizing, preparing, and reviewing correspondence; (5) monitoring the receipt and release of union correspondence; (6) maintaining reading correspondence files; and (7) although no longer officially assigned as the front office back up, she occasionally provides coverage. At one time, the Center for Operations performed tasks related to arbitrations and unfair labor practices. However, these tasks were transferred to the Center for Negotiations and Litigation in 2006. The second half of Complainant’s center concerns Disability Adjudication and Review, where a program analyst could assist in: (1) advising, guiding and processing (at ODAR Headquarters) labor management and employee relations issues; (2) directing service to ODAR; and (3) managing employee relations/adverse and disciplinary actions (e.g., credit card misuse, security sanctions, etc.). Finally, the Center for Negotiations and Litigation divides its work between a litigation team and a negotiations team. A program analyst that is part of the negotiations team could work on: (1) term and mid-term (MOUs and letters of understanding) negotiations as well as providing negotiations preparation and logistical support; (2) contract coordination with all unions; (3) union travel; (4) contract interpretation and guidance; (5) mediation/facilitation interface; (6) negotiability appeals; (7) impasses; (8) negotiator's cadre; and (9) status reports. A litigation team program analyst could assist with: (1) attorney payments; (2) salary overpayments; (3) litigation (e.g., unfair labor practices, arbitrations, grievances, etc.); (4) advice and guidance to supervisors/managers and regional labor relations/employee relations (LR/ER) staff; (5) training for managers and regional LR/ER Staff; (6) union consultation; (7) local level union correspondence and notices; (8) LR/ER conference calls; (9) union dues; and (10) bargaining unit status (BUS) codes. In addition to the center-specific duties, the program analyst position description also lists general duties such as providing “a variety of administrative and support activities that are essential to the effectiveness of the office mission” and “perform[ing] ad hoc administrative duties such as serving as the back-up for front office activities and perform[ing] timekeeping for personnel in OLMER.” Starting in October 2006 through April 2007, up to six black females and one white female worked under the same position description as Complainant, C1 (Black, female) and C2 (Black, female) who worked in the Center for Program Policy, Automation and Training; and C3 (White, female), who worked in the Center for Negotiations and Litigation. During the same time period, C4 (Black, female) was a GS-11 administrative specialist and C5 (Black, female) was a GS-9 staff assistant in the Federal Career Intern Program and both were assigned to the OLMER front office. In the fall 2006, the Deputy Associate Commissioner (DA), asked the center directors to nominate two program analysts to act as regular back-ups to C4 and C5. The center directors 0120140775 4 nominated Complainant and C1, and DA assigned them to provide back up front office coverage on a rotating basis. On September 11, 2006, Complainant submitted a leave slip to her first line supervisor (S1) asking to use 32 hours of annual leave from December 26, 2006 through December 29, 2006. S1 initially gave Complainant his tentative approval for the annual leave. C4, C5, and C1 requested leave for the same days as Complainant between Christmas and New Year’s Eve 2006. Thus, if each request for leave had been approved as requested, no staff trained to cover the front office would have been available to perform this function during the 2006 holiday period. DA provided Complainant, C4, C5, and C1 the opportunity to work out a leave schedule themselves. However, they were unable to reach an agreement. In lieu of an agreement between the employees, DA created a leave schedule for the holiday period. Based on this schedule, Complainant was to work November 24, 2006, December 28-29, 2006, and January 2-3, 2007. After creating the schedule, management told Complainant, C4, C5 and C1 that if they wished to take leave on a day they were scheduled to work, they must provide justification for that leave (e.g., nonrefundable airplane tickets). On December 6, 2006, Complainant submitted a memorandum pursuant to management’s request for additional justification for leave. The memorandum stated: “My Family and I have holiday plans out of town.” On December 11, 2006, in response to Complainant’s memorandum, DA said that he was “unable to make a determination of the urgency of your leave request based on your limited information you provided in writing” and denied her request for leave for December 28-29, 2006. On December 14, 2006, S1 issued a letter to Complainant formally denying the leave request. The letter also warned Complainant that if she failed to report to work on those two days she would be subject to a charge of insubordination and would be placed on AWOL. S1 returned Complainant’s application for leave granting her request for leave on December 26-27, 2006 and denying it for December 28-29, 2006. That same day, Complainant discussed with S1 the denial of leave and potential ramifications of ignoring management’s direction. Complainant did not report to work on December 28 or 29, 2006, and did not call in her absences on either day. On January 9, 2007, S1 proposed suspending Complainant because she failed to follow his direct instructions to report to work and because she was AWOL on those days. On February 9, 2007, DA suspended Complainant for four days. Complainant originally was to be suspended on February 15, 16, 20, and 21, 2007. However, to ensure that she was paid for the President’s Day holiday on February 19, 2007, DA split her suspension. She served the second half of the suspension on February 21-22, 2007. Complainant worked with two employees (C6 and C7) on a project to implement a new leave request system. C6 and C7 received performance awards in April 2007, but Complainant did not. C6 and C7 worked in the Center for Program Policy, Automation, and Training. Their center director was D1. Complainant admits she did not discuss the 2007 performance awards with her supervisors. 0120140775 5 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. The AJ issued his decision in favor of the Agency and found that the record failed to support Complainant’s claims. First, the AJ concluded that Complainant failed to present evidence establishing that the Agency treated any similarly situated employees differently with respect to the denial of requested leave, assignment of administrative tasks, and the decision not to grant a performance award. The AJ also determined that Complainant failed to present evidence that the tasks assigned to her did not fall under the scope of her job duties. The AJ also concluded that even assuming that Complainant established a prima facie case of discrimination or reprisal, the Agency presented legitimate, non-discriminatory reasons for its actions and aside from Complainant’s bare, uncorroborated assertions the record is devoid of evidence of pretext or discriminatory/retaliatory animus. Upon review of the record, we agree with the AJ analysis and conclusions. Specifically, with respect to the claim that she was not permitted to perform the full scope of her duties, we find that the AJ properly determined that Complainant failed to make out a prima facie case of discrimination based on race or sex regarding the assignment of her job duties. Complainant was unable to establish that the Agency treated any similarly situated employee of a different race or sex differently. In her appeal, Complainant states that Black females were called for assistance more than White females. In an attempt to support this assertion she alleges that the Agency treated C3 differently. However, Complainant does not provide evidence to support this assertion. Furthermore, the undisputed facts establish that Complainant and C3 are not similarly situated because they work in different centers and under different supervisors. With respect to Complainant’s retaliation claim on the issue of denied leave in December 2006, Complainant cites the national agreement regarding annual leave requests to suggest that the 0120140775 6 Agency did not follow the proper leave procedures. However, the section cited by Complainant refers to requests for annual leave made during the “leave request” months of February and August, which does not apply to Complainant’s request at issue. In addition, the failure to apply leave policy, without more, is not sufficient to establish discriminatory/retaliatory motives herein. Complainant does not address the claims pertaining to the AWOL/suspension charges and the failure to receive a performance award in her appeal. We find that the record supports the AJ’s conclusion that Complainant failed to follow a direct order to report to work and was suspended for that reason. The undisputed record also establishes that she was not entitled to a performance award and was not similarly situated to C6 and C7.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision finding that Complainant failed to present sufficient evidence to establish discrimination/retaliation as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 3 Complainant’s failure to promote claim was subsumed into a class action complaint and will not be addressed herein. 0120140775 7 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 (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 November 1, 2016 Date