0120152116
02-11-2016
Doria D.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doria D.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120152116
Hearing No. 430-2014-00141X
Agency No. HS-USCG-01160-2013
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 17, 2015 final order concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Pricing Specialist at the Agency's Community Service Command, Coast Guard Exchange System in Chesapeake, Virginia.
On May 21, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), disability, and in reprisal for prior EEO activity when:
1. on April 2, 2013, she received her February 2012-January 2013 performance evaluation which contained the comment, "[Complainant] is not promotable at this time, but will be a candidate for promotion as she takes the retail math skill and analysis class and works to understand the many aspects of [merchandising];"
2. on April 19, 2013, after returning to work from an EEO appointment, she was called into a meeting with management to discuss her job performance and directed to submit a leave form for her time out of the office;
3. on April 24, 2013, she was issued a one-day Notice of Suspension for emails addressing her dissatisfaction with management handling her evaluation;
4. on May 6, 2013, she was issued a Letter of Reprimand addressing her sick leave usage; and
5. on May 7, 2013, she was issued a Letter of Reprimand for being absent without prior approval on May 3, 2013.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On March 23, 2015, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Before Complainant's termination for job abandonment on May 15, 2013, Complainant performed data entry tasks and reviewed distributing reports for the Coast Guard Exchange System. Despite identifying her disability as ovarian cancer, the record reflects that Complainant does not have, and never ever had ovarian cancer. During the relevant period, Complainant never made a request for reasonable accommodation. In February 2013, Complainant had surgery to remove a cyst and a hysterectomy. Complainant was out of work for six weeks following the surgery. Complainant claimed to have indicated "ovarian cancer" as a disability based on her doctor's comments. In April 2013, Complainant developed an infection and the prescribed antibiotics made her sick.2
At the time of her formal complaint, Complainant claimed she did not know her diagnosis because she no longer had medical insurance and could not afford to see a doctor. Complainant indicated that she notified her supervisor that she needed surgery and would be on leave. The supervisor then notified her second level supervisor. When Complainant returned to work, she felt she was targeted by her second level supervisor. For instance, Complainant claimed that her second level supervisor questioned her about her use of sick leave despite knowing that she did not have any sick leave.
The AJ found that in regard to claim 1, Complainant's supervisor stated that as the rating official, he prepared Complainant's Performance Review for the period of February 2012-January 2013. The supervisor stated that the rating form has a section under Written Summary entitled "Management Assessment of Promotability." The supervisor stated that as Complainant's supervisor, he was required to complete this section. The supervisor acknowledged writing that Complainant was not promotable at that time because she did not take the retail math skill and analysis classes. Specifically, the supervisor stated that under Objective #5 "Creating, Modifying, and Copying Workbooks, Navigating Worksheets, Ranges, Utilizing Toolbars, Formulas, Numeric Format, and Retail Math Calculations Formulas (Basic Excel)" of Complainant's 2012 evaluation, it was not completed. The supervisor stated that the Agency "has a retail math course that many of our merchandising associates took in 2012. Complainant was not one of them. I had discussions with Complainant that retail math and Excel are key areas to understand and use. Both of these would give Complainant a better understanding of merchandising and make her a candidate for possible promotion."
Regarding claim 2, the Buyer stated that from April 15, 2013 through May 2013, she was Complainant's acting supervisor while Complainant's supervisor was on medical leave. The acting supervisor stated that on April 18, 2013, she received an email form Complainant stating that she would be in a meeting the next morning. However, the acting supervisor later received another email stating that Complainant would be out of the office the next day "to handle some business. By the time I opened the second email...Complainant had left work for the day. The leave procedure required Complainant to submit a leave slip in advance."
The acting supervisor stated that the next day, April 19, 2013, she instructed Complainant to come to her office. The acting supervisor stated that while she was speaking to Complainant, she was completing a leave slip and presented to her. The acting supervisor stated that she informed Complainant "that from that point forward, she must submit a signed request for leave, and the request must be approved and signed by management prior to her taking leave...several days later when I was reviewing Complainant's time and attendance, she (Complainant) told me that on the morning of April 19, 2013 she met with an EEO Counselor. I advised Complainant that if she met with an EEO Counselor, she could get paid for the time and that she would not have to be charged leave. I then contacted Human Resources and was told that the time Complainant met with an EEO Counselor was Administrative Leave. Complainant's leave was then changed to Administrative Leave."
Regarding claim 3, the Director, also Complainant's second level supervisor, stated that on April 18, 2013, the HR Director, the Chief Operating Officer, and she met and "came to the unanimous decision to suspend Complainant for one day for her disreputable conduct, using insulting language about others while on the job, and making false or unfounded statements. Complainant was suspended because she 1) accused me of being a liar in front of [Chief Operating Officer]; 2) she was texting [Chief Operating Officer] making disreputable comments about him; and 3) she made a false accusation that her Performance Review had been changed from one that had been presented to her by [supervisor]. Complainant was unable to provide any information to support her statement that her Performance Review had been changed." The Director stated that on April 24, 2013, the Chief Operating Officer gave Complainant the Notice of Suspension.
Regarding claim 4, the acting supervisor stated that on May 6, 2013 she issued Complainant a Letter of Requirement that placed her on notice that sick leave would not be approved unless it was supported by a doctor's note. Specifically, the acting supervisor stated that when she became Complainant's acting supervisor, she noted "from signing her time and attendance cards that she was in a Leave Without Pay (LWOP) status. That prompted me to go to HR and look into Complainant's total time and attendance reports for the six week period after she had returned to work from her surgery. The total work hours available (for the six week time period) were 224 hours, and she had used 70 hours of sick leave or LWOP." The acting supervisor stated that she then discussed this matter with the Director of Merchandising and Human Resources (HR) "as I did not know what to do. HR instructed me to issue Complainant a Letter of Requirement."
The Director stated that from March 31, 2013 to May 6, 2013, Complainant had used 49 hours of sick leave or LWOP for her medical absences. The Director stated that Complainant's frequent absences "disrupted the efficient operation of the merchandising department and burdened other members of the staff with additional work to compensate for her absences. I discussed the matter with HR, and they agreed the problem needed to be addressed. A Letter of Requirement was prepared and presented to Complainant to address her excessive use of sick leave and LWOP." The Director stated that the letter also placed Complainant on notice that she must request sick leave each time she would be absent and that it must be approved in advance.
Further, the Director stated while she was aware that Complainant had surgery in 2013, she was never aware that Complainant "had a physical disability (cancer). I am not aware if anyone else in management was aware Complainant had a disability (cancer)." The Director stated that Complainant's race, disability and prior protected activity were not factors in Agency management's decision to issue her the Letter of Requirement.
With respect to Complainant's claim that the Director targeted her concerning her leave usage, the Director stated "I never 'targeted' Complainant. The Director stated that the Letter of Requirement was based on Complainant's job performance and her inability to follow the Agency's policies and procedures.
Regarding claim 5, the record reflects that on May 7, 2013, Complainant was issued a Letter of Reprimand for being absent without prior approval on May 3, 2013. The acting supervisor stated that on May 1, 2013, Complainant placed her leave request for May 3, 2013 on her desk "while I was on the phone. On May 2, 2013, Complainant served her one day suspension. On the morning of May 2, 2013, I called Complainant at her residence to advise her that her request for leave for May 3, 2013 was not granted, and she had to be at work on that day (May 3, 2013) or disciplinary action would be taken ...Complainant's leave request for May 3, 2013 was not approved because she did not have prior approval."
Further, the acting supervisor stated that Complainant told her on the telephone that she was having a "procedure" on the evening of May 2, 2013 and would not be at work on May 3, 2013. The acting supervisor stated that Complainant "stated she was tired of being harassed and asked to speak to [HR and Administration Director]." The acting supervisor stated that she transferred Complainant to the HR and Administration Director. The acting supervisor stated that on May 6, 2013, Complainant returned to work and gave her a doctor's note. The acting supervisor stated that she then gave the note to the HR and Administration Director. On May 6, 2013, Complainant's supervisor returned to work and "I advised him about the above issue. I had no further involvement in the matter and was not aware that on May 2, 103, Complainant was issued a Letter of Reprimand until after the fact."
The acting supervisor stated that she did not discriminate against Complainant based on her race, disability, and prior protected activity. Specifically, the acting supervisor stated "the actions that I was involved with were based on work performance and Complainant's inability to follow policies and procedures."
The supervisor stated that on May 7, 2013, he was informed by the acting supervisor that Complainant "was off work on May 3, 2013 for an unexcused absence and did not have permission to be absent...I was then informed of the Letter of Requirement. I advised [Director] that a Letter of Reprimand needed to be prepared and presented to Complainant for unexcused and unauthorized absence." The supervisor stated that the Director concurred with his suggestion. The supervisor stated that he then prepared the Letter of Reprimand which was reviewed by HR, and presented it to Complainant. The supervisor stated that in paragraph 2 of the Letter of Reprimand, Complainant was placed on notice that she was "instructed by her [acting supervisor], that any request for annual or sick leave must be submitted and approved in writing prior to the requested leave. You failed to get approval for May 3, 2013."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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 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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
February 11, 2016
__________________
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 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability.
3 On appeal, Complainant does not challenge the May 31, 2013 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of race, disability and in reprisal for prior EEO activity when on or about February 1, 2013, her compressed work schedule was changed to regular 8-hours days without justification. Therefore, we have not addressed this issue in our decision.
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