Harriet J.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120171858 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet J.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171858 Agency No. 200H-0632-2015103729 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated October 28, 2016, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide, WG-2, for the Environmental Management Service (EMS) at the Agency’s Medical Center in Northport, New York. On September 26, 2015, Complainant filed her complaint alleging discrimination based on race (African-American) and sex (female) when: (1) On May 6, 2015, managers of the EMS changed her shift from third shift (11:00 pm – 7:00 am) to second shift (3:00 pm – 11:30 pm); and 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. 0120171858 2 (2) On May 26, 2015, she was issued a notice of 3-day suspension effective June 10, 2015, through June 12, 2015. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. Regarding claim (1), Complainant indicated that her shift change from the third shift (11:00 pm – 7:00 am) to the second shift (3:00 pm – 11:30 pm) did not actually occur until June 14, 2015. Complainant’s second level supervisor, the Assistant Chief of EMS, indicated that she changed Complainant’s shift for the efficiency of the office in that the second shift was experiencing a staff shortage and Complainant was the least senior employee in her third shift. Complainant’s third shift supervisor (S1), the Work Leader, indicated that he recommended the shift change because Complainant did not follow his instructions and she did not work well with him. Specifically, stated S1, Complainant refused to work in Units 33 and 34 as instructed; she attempted to get the master key which only a supervisor was allowed to obtain; and she took breaks at the wrong time. The EMS Chief, agreeing with his Assistant Chief and S1, stated that Complainant needed extra supervisory oversight and the second shift had a stronger managerial presence with three supervisors for 20 employees whereas the third shift had only one supervisor, i.e., S1. Regarding claim (2), the EMS Chief stated that he issued Complainant the suspension at issue. The Chief indicated that S1 reported that he found Complainant sleeping on the job and she failed to complete assigned duties. Complainant claimed that she was not sleeping on April 18, 2015, as charged, instead she was playing a game on her phone during her break. S1 indicated that on the date of the incident, Complainant was sleeping with her eyes closed in the supply room and it was not her break time. 0120171858 3 S1 also stated that on April 20, 2015, he asked Complainant to sweep and mop two flights of stairwells but she said she was busy and refused to do as instructed. Complainant denied that S1 asked her to do that assignment but if he did she might have told him she was busy because she was very busy on Fridays. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120171858 4 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 30, 2018 Date Copy with citationCopy as parenthetical citation