0120141449
06-09-2016
Elsa R.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elsa R.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.
Appeal No. 0120141449
Hearing Nos. 531-2008-00720X
531-2009-00107X
531-2011-00322X
531-2011-00323X
Agency Nos. AMS200800293
AMS200700696
DECISION
On March 11, 2014, Complainant's Estate ("Estate") filed an appeal from the Agency's February 12, 2014, final decision concerning Complainant's 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant when it subjected her to harassment on the bases of sex (female), age (52), race (African-American), disability (Attention Deficit Disorder (ADD) and Post Traumatic Stress Disorder (PTSD)), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On August 23, 2007, the Chief Information Officer (CIO) denied her request to telework;
2. On July 11, 2007, she was issued a Letter of Reprimand;
3. On June 13, 2007, she was directed to give a presentation on Adaptive Enterprise Architectural Requirement (EAR), even though she informed her managers that she was not versed on the subject;
4. In June 2007, she received a negative mid-year performance review;
5. On April 13, 2007, she was issued a Letter of Caution for her conduct;
6. In April 2007, the CIO aggressively postured himself toward her during a meeting;
7. Since December 2005, management denied her request for reasonable accommodation;
8. The CIO hindered her career progress by refusing to provide requested staff; misled her into believing her position would be upgraded, recommended that she transfer to another position, and subsequent to her transfer, upgraded another position;
9. The CIO consistently avoids her, fails to share information with her, and isolates her;
10. Since May 18, 2005, her requests for compensatory and/or credit hours were denied;
11. Since May 18, 2005, she was not provided the requisite training to adequately perform the essential functions of her job;
12. Since May 18, 2005, she has not been afforded the opportunity to be the "Acting Manager;"
13. Since May 18, 2005, upper management has failed to intervene when the alleged harassment was brought to their attention;
14. On December 7, 2007, she received an "unacceptable" performance rating;
15. On or about December 7, 2007, the Agency failed to respond to her EEO complaints and emails regarding the alleged harassment;
16. On or about December 8, 2008, she was placed on a leave without pay (LWOP) status; and
17. On July 15, 2008, she received notice that she was retroactively placed on an absence without leave (AWOL) status as of June 23, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technician Enterprise Architecture Specialist at the Agency's Agricultural Marketing Service in Washington, D.C.
In March 2004, the CIO (male, 54 years old, Caucasian, no disability, married, and no prior EEO activity) offered Complainant a lateral Enterprise Architectural position. Complainant alleged that the CIO did not offer her an Information Systems Security Program Manager (ISSPM) position, which was later upgraded to a GS-14. Also in March 2004, Complainant requested a comprehensive training course costing over $9,000. The CIO informed her that the funds were not available. Complainant then requested a training course that cost $400, which was approved. Complainant stated that in 2001, she served as an Acting Manager and was denied the opportunity to serve as an Acting Manager on November 1, 2006.
On April 5, 2007, Complainant met the CIO who requested a status report on a project. Complainant stated that after she provided a written status report, the CIO smacked the table, spoke loudly, and pointed at her. Complainant alleged that the CIO also slapped a chair and stated to Complainant, "have a seat." On April 13, 2007, the CIO issued Complainant a Letter of Caution for her "very combative and aggressive attitude" during the April 5, 2007, meeting. On May 9, 2007, Complainant filed a complaint alleging that the CIO engaged in workplace violence against her during this meeting.
In April 2007, the CIO was informed that Complainant would be arriving late to work, but when Complainant submitted her timesheet; her late arrivals were not recorded. When the CIO asked Complainant about her time, she stated that she worked late to make up the hours due to her late arrival. The CIO informed Complainant that she was not allowed to make up her late arrival, and that she should have requested to use compensatory or credit hours. The CIO approved three hours of credit hours, and asked Complainant to submit a corrected timesheet. Complainant's corrected timesheet requested seven credit hours. The CIO requested that Complainant make the changes to her timesheet according to their previous discussion. Complainant submitted another timesheet requesting three hours of annual leave, instead of credit hours.
The Deputy Chief Information Officer (DCIO) (female, 45 years old, African-American, no disability, married, and no prior EEO activity) stated that on May 24, 2007, she assigned Complainant to create a presentation on EAR, and instructed her not to contact the Office of Management and Budget (OMB). The DCIO stated that Complainant persisted in trying to get another employee (E1) to give the presentation, and contacted the OMB. The CIO stated that Complainant was instructed not to contact the OMB because of concerns that employees were improperly contacting the OMB, instead of working through their own offices. In June 2007, the CIO and the DCIO gave Complainant her mid-year review of less than fully successful. On July 11, 2007, the DCIO issued Complainant a Letter of Reprimand for failure to follow instructions when she failed to prepare the EAR presentation; did not inform E1 that he was not responsible for preparing the EAR presentation; and contacted the OMB.
On August 9, 2007, Complainant requested administrative leave after exhausting her available sick and annual leave. On or around August 23, 2007, the CIO informed Complainant that she could not be granted administrative leave, and advanced her the maximum amount of sick and annual leave. He also suggested that Complainant request LWOP, leave donations, a reasonable accommodation, or disability retirement. Complainant requested the ability to work from home as a reasonable accommodation, which was forwarded to the Agency's Mission Area Designee for Reasonable Accommodations (MARA). The MARA denied Complainant's request on October 2, 2007, after it determined that Complainant's documentation was insufficient to establish that she was an individual with a disability.
On August 23, 2007, Complainant sent an email to the CIO requesting to telework. The CIO informed Complainant that she was ineligible for telework because of her unsatisfactory performance review in June 2007. Additionally, the CIO noted that Complainant's medical documentation stated that she was incapacitated and unable to perform her job duties.
On October 31, 2007, the Deputy Administrator (DA) sent Complainant a memo informing her that the Agency investigated her May 9, 2007, allegation of mistreatment by the CIO. The DA stated that upon investigating the claims, he found no evidence to substantiate them, and considered the matter closed.
On December 7, 2007, Complainant received an "unacceptable" performance rating. Complainant was placed on an LWOP status on December 8, 2007, after exhausting her available leave. The CIO sent letters to Complainant on April 22, 2008, and July 10, 2008, informing her of her options since she had been absent from work since June 15, 2007. Complainant did not respond, and due to her lack of communication, she was placed on AWOL on June 23, 2008.
On August 22, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her when it subjected her to harassment on the bases of race (African-American), sex (female), disability (ADD and PTSD), marital status (divorced), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On August 23, 2007, the CIO denied her request to telework
2. On July 11, 2007, she was issued a Letter of Reprimand;
3. On June 13, 2007, she was directed to give a presentation on EAR, even though she informed her managers that she was not versed on the subject;
4. In June 2007, she received a negative mid-year performance review;
5. On April 13, 2007, she was issued a Letter of Caution for her conduct;
6. In April 2007, the CIO aggressively postured himself toward her during a meeting;
7. Since December 2005, management denied her request for reasonable accommodation;
8. The CIO hindered her career progress by refusing to provide requested staff; misled her into believing her position would be upgraded, recommended that she transfer to another position, and subsequent to her transfer, upgraded the position;
9. The CIO consistently avoids her, fails to share information with her, and isolates her;
10. Since May 18, 2005, her requests for compensatory and/or credit hours were denied;
11. Since May 18, 2005, she was not provided the requisite training to adequately perform the essential functions of her job;
12. Since May 18, 2005, she has not been afforded the opportunity to be the "Acting Manager;"
13. Since May 18, 2005, upper management has failed to intervene when the alleged harassment was brought to their attention.
On May 1, 2008, Complainant filed another EEO complaint alleging that she was discriminated against when she was subject to harassment based on her age, race, disability, and reprisal for prior EEO activity when:
14. On December 7, 2007, she received an "unacceptable" performance rating;
15. On or about December 7, 2007, the Agency failed to respond to her EEO complaints and emails regarding the alleged harassment;
16. On or about December 8, 2008, she was placed on a LWOP status; and
17. On July 15, 2008, she received notice that she was retroactively placed on an AWOL status as of June 23, 2008.
At the conclusion of the investigations, 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 (AJ). Complainant requested a hearing for her first EEO complaint on May 5, 2008, and her second EEO complaint on January 13, 2009. The two complaints were consolidated for hearing. On May 13, 2010, Complainant withdrew her hearing request because she intended to file a civil action on the same matter. Complainant specifically requested that a final agency decision (FAD) not be issued. On May 27, 2010, the AJ issued an order dismissing Complainant's complaint.
On July 14, 2010, Complainant passed away, prior to filing her civil action. In October 2010, Complainant's family contacted the Agency to inquire about the status of Complainant's EEO complaint. On December 10, 2010, the Agency sent a letter to the Estate stating that it could: (1) contact the EEOC to reinitiate the hearing process; (2) request a FAD; or (3) file a civil action. On April 12, 2011, the Estate requested a hearing before an AJ. The AJ issued an Order Directing the Agency to Produce Complaint File on June 20, 2011.
On July 7, 2011, the Agency filed a Motion to Dismiss Hearing Request. The Agency argued that prior to her passing, Complainant had knowingly and voluntarily withdrawn her request for a hearing, and that the Estate should be bound by her election. On July 22, 2011, the Estate filed an Opposition to Motion to Dismiss, arguing that since Complainant had never filed a civil action, the dismissal was inappropriate. Alternatively, the Estate argued that the dismissal was without prejudice, and that the Estate has the right to reinitiate the claim. On September 25, 2013, the AJ issued an Order Entering Dismissal. The AJ determined that a dismissal was proper because Complainant had withdrawn her hearing request, and that the EEOC had dismissed the matter. As such, the EEOC no longer had jurisdiction. The AJ remanded the case back to the Agency for an issuance of a FAD. The Estate filed an appeal with the Commission's Office of Federal Operations (OFO) on December 20, 2013. It withdrew the appeal on January 17, 2014, as being premature since the FAD had not yet been issued.
The Agency issued the FAD on February 12, 2014, finding that Complainant did not show that the Agency discriminated against her as alleged. The Agency found that Complainant established a prima facie case of discrimination based on reprisal, but not based on her sex, age, race, disability, and marital status. However, for the purposes of the FAD, the Agency assumed a prima facie case of discrimination for all the alleged bases, and found that Complainant's managers articulated legitimate, non-discriminatory reasons for its actions.
For claim 1, the CIO stated that Complainant was not eligible for telework because of her poor performance. In regards to claim 2, the DCIO gave Complainant specific instructions, which she did not follow. As such, the DCIO issued Complainant the Letter of Reprimand. For claim 3, the CIO and the DCIO stated that Complainant was a subject matter expert on EAR and knowledge of the system was an essential part of her job responsibilities. Additionally, the DCIO stated that she instructed Complainant to provide a simple overview of EAR.
In response to claim 4, the CIO stated that Complainant's poor performance, failure to provide progress reports, and the lack of progress in her general job duties warranted the negative mid-year performance review. For claim 5, the CIO denied acting aggressively towards Complainant. The DCIO stated that CIO did not slap the chair, but tapped it. She also stated that Complainant accused the CIO of not doing his job, and that she acted inappropriately towards him. In regards to claim 6, the CIO and the DCIO stated that they issued Complainant a Letter of Caution due to her behavior during their meeting. For claim 7, the CIO and the DCIO stated that Complainant's request for reasonable accommodation was denied due to insufficient medical documentation.
In regards to claim 8, the CIO stated that Complainant did not have the expertise to perform her current position, and offered her the EA position. While the CIO and the DCIO stated that the ISSPM position was announced soon after Complainant transitioned to the EA position, they stated that she could not be "upgraded," and that she would need to apply for the promotion, which she did not do. For claim 9, the CIO and DCIO denied isolating her, denying her information or avoiding her.
For claim 10, the CIO stated that he approved three hours of credit hours, but that Complainant attempted to claim seven hours, but then changed it to zero hours. In response to claim 11, the CIO and DCIO stated that Complainant had been provided training each year to help her perform her job. For claim 12, the CIO and the DCIO stated that Complainant was not provided the opportunity to be an Acting Manager because she did not have the skills required; this opportunity was rarely given to GS-13 employees; and that Complainant arrives later than all the other employees, and would not be able to effectively supervise them. In regards to claim 13, the CIO stated that Complainant's allegations have been investigated, but that they had not been substantiated.
For claim 14, the CIO stated that Complainant received a negative performance review because she had not improved her performance since the mid-year. The DCIO also stated that Complainant was absent almost every day since her mid-year performance review and had not improved her performance. In response to claim 15, the managers stated that Complainant's allegations were being addressed. For claims 16 and 17, the CIO stated that he informed Complainant of her leave status and options. He stated that Complainant did not respond to him, and that he placed her on LWOP and AWOL.
The Agency also found that Complainant had not shown any evidence that the managers' proffered legitimate, non-discriminatory reasons were pretext for discrimination. The Agency concluded that Complainant had not shown that she was discriminated against as alleged.
The Estate filed the instant appeal and submitted its appeal brief on May 27, 2014.2 The Agency filed an opposition brief on June 12, 2014, requesting that the FAD be affirmed.
CONTENTIONS ON APPEAL
On appeal, the Estate argues that the Agency's FAD should be reversed because:
1. Neither the Agency nor the AJ cited any statutory or regulatory basis for the dismissal;
2. The Agency should be estopped from arguing that the Estate cannot reinitiate a hearing, after it informed the Estate of that option;
3. The FAD's issuance was untimely, and the Agency should be sanctioned; and
4. The AJ's decision was untimely.
ANALYSIS AND FINDINGS
Standard of Review
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").
The Estate argues that the Agency's FAD should be reversed for various procedural reasons. On appeal, the Estate argued that neither the Agency nor the AJ cited to a statutory or regulatory basis for the dismissal of the hearing request. However, while we note that the AJ's September 25, 2013, dismissal order cites 29 CFR �1614.109(f)(3), which is not on point, it also cites Hansen v. Department of Justice, EEOC Appeal No. 0120112338 (September 23, 2011), where OFO held that after the complainant voluntarily withdrew his hearing request, he was no longer entitled to a hearing. Accordingly, we find that the AJ properly dismissed the Estate's request for another hearing because Complainant had withdrawn her request for a hearing, and remanded the case back to the Agency for a FAD.
The Estate also argued that the Agency provided it with the option to reinitiate the hearing process, and that the Agency should be estopped from arguing that it cannot. While we credit that the Estate acted based upon information provided by the Agency, we find that the Estate has not cited any legal authority to support its argument that it be allowed to request another hearing, after Complainant had voluntarily withdrawn her request for a hearing.
The Estate requests that the FAD be reversed, and the Agency be sanctioned for issuing an untimely FAD. The Estate notes that the FAD should have been issued by February 2, 2014, but was not issued until February 12, 2014, ten days late.
The Commission has exercised its inherent authority to enforce its 29 C.F.R. Part 1614 regulations by ordering sanctions in response to various types of violations. See Complainant v. Dep't of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where agency failed to submit hearing transcripts on appeal); Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to provide copy of hearing record, including hearing transcripts).
Our sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052. Several factors are considered in tailoring a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052, "the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's, claims. Id.
In this case, we find that the Agency did not act in a manner to warrant sanctions. The Agency issued the FAD ten days late, but argues that the Estate caused some confusion in the process when it filed its first appeal, which was later withdrawn. We find it reasonable that the Estate's filing of its December 20, 2013, appeal delayed the issuance of the FAD because it appeared that the Estate was appealing the AJ's decision, which ordered the FAD. Until the Agency learned that the Estate had withdrawn its appeal, there was uncertainty as to whether it should continue with the issuance of the FAD. Additionally, we find that the Estate has not argued or shown than the late FAD had a prejudicial effect, resulted in a delay in justice, or its effect on the integrity of the EEO process. Accordingly, we find that sanctions against the Agency are not appropriate, nor is the slight delay in the issuance of the FAD a sufficient reason to reverse its finding on the merits of Complainant's claims.
The Estate also alleges that the AJ's untimely decision warrants its overturn. Specifically, the Estate argues that the AJ's decision was due on November 3, 2011, but was issued on September 25, 2013, nearly two years late. We find that although the AJ should have issued the decision within 180 days of receipt of the instant complaint file by the Agency, such action does not mandate judgment on the merits for Complainant, or any other adverse action on the merits against the Agency. See C.F.R. � 1614.109(i).
While the Estate has not made any arguments regarding the merits, we affirm the FAD's finding that Complainant had not shown that she was discriminated against based on her sex, age, race, disability, or in reprisal for prior EEO activity. 3 We will assume for the purposes of this decision that Complainant belongs in statutorily protected classes in regards to her sex, age, race, disability, and prior EEO activity. We agree with the Agency that Complainant's managers articulated legitimate, non-discriminatory reasons for its actions, and that Complainant had not presented any evidence that their reasons were pretext for discrimination.
We note that the Agency treated Complainant's claims as discrete acts of alleged discrimination, and not as an allegation of a hostile work environment. However, a finding of unlawful harassment is precluded based on the finding that Complainant failed to establish that any of the complained of actions taken by the Agency were motivated by her protected bases. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Accordingly, we find that Complainant has not shown that she was discriminated against or subject to harassment based on her sex, age, race, disability, and in reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant did not show that she was discriminated against based on sex, age, race, disability and in reprisal for prior EEO activity.
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 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
__6/9/16________________
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 Estate requested an extension to file its brief in support of the appeal and was granted an extension to file by May 27, 2014. While the Agency argues that it should not be considered, we find that it was timely due to the extension and will be considered for the purposes of this decision.
3 The EEOC's regulations do not cover marital status as a basis, and accordingly, we will not address Complainant's marital status claim in this decision.
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