0120160874
06-06-2018
Heidi B.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Heidi B.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120160874
Agency No. NPS130126
DECISION
On February 16, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 5, 2015, final decision 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 Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that management discriminated against her when she was issued a bill of collection to pay back accrued and donated leave, given a "Fully Successful on her evaluation, and her leave balances were changed or adjusted without her knowledge and without justification.
BACKGROUND
At the time of events giving rise to this Complaint, Complainant worked as a Regional Hydrologist and Air Quality Coordinator, GS 12 at the Agency's National Park Service, U.S. Department of the Interior (DOI) facility in Atlanta, Georgia. On January 31, 2013, Complainant filed the EEO complaint at issue alleging, among other things, that the Agency discriminated against her on the bases of race (African-American), color (Black) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On or about October 10, 2013, she was issued a Bill of Collection to pay back accrued and donated leave;
2. On November 1, 2012, she was given Fully Successful performance appraisal; and
3. As of May 24, 2013, her leave balances were changed or adjusted without knowledge, or without justification for the changes or adjustments.
Specifically, with respect to claim 1, Complainant stated she was issued a bill of collection for $3,595.89, purportedly for leave she used and did not have available. Complainant stated that this was an invalid claim that arose from an incorrect calculation of her leave accrual and the application of the wrong return-to-work date for her time out while undergoing and recovering from a surgical procedure. She states that the Debt Management Branch of DOI issued this bill to her. Complainant asserts that S-1 (Complainant's supervisor) and S-2 (S-1's Supervisor) submitted a different return-to-work date than submitted from her doctor. She claims management failed to calculate her normal accrual of leave taken during this period, and states donated leave was also taken in the same pay period.
Regarding claim 2, Complainant contends that her performance rating was reduced as an act of reprisal for her filing her EEO complaints. In the final appraisal provided to her by S-1, Complainant was rated as "Fully Successful." Complainant contends that the rating was inconsistent with ratings she received prior to filing her EEO complaints.
With regard to claim 3, Complainant asserts at the time in question, she had an adequate amount of annual leave and sick leave available. She asserts after the full amount requested on October 10, 2012 was paid in full, the managers requested additional monies past the amount requested without a notification or reason. She asserts this request came through Human Resources (HR). She claims management took approximately 45 hours of leave from May to July 2013, with no justification or notification.
Complainant asserts these actions overlap with her prior EEO activity and she maintained that the Agency's actions were intentional and retaliatory. She claimed she is unaware of any employee without EEO activity who has encountered similar treatment. She also asserts that the Agency's actions were due to her race, color and in reprisal for her EEO activity because of the seriousness, frequency and timing of the errors, and claims her chain of command signs off on her time and attendance, and would have an opportunity to introduce errors into the system.
Complainant states she has repeatedly requested that these errors be corrected, and management would have been aware of these requests from Human Resources and her initiation of the EEO counseling. She claims management has slowly fixed some of the errors, but there continues to be problems.
S-1 stated that she did not have a role in HR issuing a Bill of Collection to Complainant or in the adjustment to Complainant's leave balances which resulted in 45 hours of leave being taken away from Complainant. She indicated that she did not have knowledge these events until the EEO complaint was filed.
S-1 stated that she received an email from HR, on August 9, 2012, requesting that she submit a letter to remove Complainant from the leave share program along with the date Complainant returned to work from her second extended leave beginning in February 2012. S-1 indicated that this request was in response to an email from Complainant to HR on August 8, 2012, notifying HR that she wanted to return the balance of donated leave to the donors, as she would use her regular leave or advanced leave for another minor follow-up procedure.
S-1 stated that she sent Complainant a message on August 9, 2012, notifying her that HR had requested a return-to-work date and a memorandum asking to remove Complainant from the leave share program. She stated that she did not receive a response from Complainant. She prepared a memorandum to HR that indicated the date Complainant was physically in the Regional Office, which was April 9, 2012. S-1 also stated Complainant had returned to work at the end of January 2012, and had to have another surgery. She stated that she copied Complainant on all these communications because Complainant was on a detail at that time. She also stated that she did not receive a response from Complainant indicating that she disagreed with the date indicated in the memorandum to HR.
S-1 further denies that she submitted a different return-to-work date to HR from the information provided to her by Complainant. S-1 states that she allowed Complainant to accrue regular leave while she was on donated leave, and that Complainant was allowed to work from home for three or four weeks after she was released to return-to-work by her doctor in March 2012. S-1 indicated that she did not provide HR the date Complainant began working from home; she provided the date Complainant was physically in the Regional Office. She stated that her action gave Complainant the extra time she could utilize donated sick leave. She also stated that she took this action to benefit Complainant because Complainant had indicated she was going to go to the doctor for follow-up visits.
S-1 stated that she had no control over leave accrual, nor can she change leave balances in her role as a supervisor, and that, according to Human Resources guidance, for donated sick leave, the donated leave is supposed to be for a long-term medical need, and used specifically for medical emergency.
S-1 asserts that Complainant was not discriminated against due to race, color or in reprisal for prior EEO activity. She maintained that the Bill of Collection was issued by HR, not her; she responded to HR's request for a return-to-work date in a manner than benefited Complainant; and Complainant did not complain to her regarding this current allegation.
With regard to her performance rating, S-1 stated that she rates all the staff supervised by her based on their annual accomplishments, and that the ratings were all based on standards established in the Employee's Performance Plan and their accomplishments during the year. According to S-1, Complainant's rating was an accurate reflection of her assessment of Complainant's performance.
S-2 (African-American) stated, in pertinent part, that she was aware of the actions at issue in this matter taken by S-1 and agreed with them. S-2 states that the actions taken were not based on Complainant's race, color or prior EEO activity.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant initially requested a hearing, but subsequently withdrew that request. The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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, 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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Fumco 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Assuming Complainant established a prima facie case of race, color or reprisal discrimination, we find that the Agency has articulated legitimate, non-discriminatory reasons for its actions. Here, responsible Agency officials articulated legitimate, non-discriminatory reasons for the actions taken by the Agency, as detailed above. Complainant articulated her frustration, beliefs and contentions, but failed to provide evidence that would establish that the reasons articulated by Agency management officials for their interactions with Complainant were pretexts for race, color discrimination or the result of retaliatory animus.
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.
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.
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, Director
Office of Federal Operations
__6/6/18________________
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.
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