0120160069
05-09-2018
Hettie T.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hettie T.,1
Complainant,
v.
R. Alexander Acosta,
Secretary,
Department of Labor
(Occupational Safety & Health Administration),
Agency.
Appeal No. 0120160069
Hearing No. 451-2014-00015X
Agency No. 12-06-082
DECISION
On September 3, 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 August 7, 2015 final order 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., 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Safety and Health Manager, GS-0018-13 at the Agency's Dallas Regional Office, Cooperative & State Programs in Dallas, Texas.
On April 28, 2012, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her race (African-American), sex (female), disability (multiple - including right hand carpal tunnel syndrome, neck sprain, infraspinatus tendon tear of the right shoulder and upper arm, left shoulder and lower back sprain, and left hip sprain), age (51 - 52), and reprisal for prior protected EEO activity when:
1. Since July 2011, management has assigned other employees to perform work assignments that should have been assigned to her because they are listed among the elements on which she will be judged on in her performance standards;
2. In November and December 2011, she learned that other employees were laterally reassigned to two GS-13 positions for which she was qualified, but management did not announce these opportunities nor consult with her to determine if she was interested;
3. On December 15, 2011, she received an Effective rating on her fiscal year 2011 Performance Appraisal and management failed to consider the work she performed prior to her July 2011 reassignment from the Fort Worth Area Office to the Regional office;
4. Her supervisor has not placed her on an Individual Development Plan (IDP) for over one year;
5. In October 2012, she received a rating of "Effective" on her fiscal year 2012 annual performance appraisal;
6. Since her 2011 reassignment, she has not been chosen to act in a supervisory role when her supervisor is out;
7. Since August 2011, her supervisor purposefully incorrectly completed her Office of Workers' Compensation Programs (OWCP) CA-17, Duty Status Forms; and
8. Since July 2011, she has been denied reasonable accommodation.
Following an investigation, Complainant had a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Thereafter, the AJ issued a decision finding no discrimination which the Agency fully implemented.
The AJ found that Complainant was a qualified individual with a disability. She found that Complainant did not establish a prima facie case of disparate treatment race, sex, age and disability discrimination on claims 1 -7 (which are disparate treatment claims), and that she was reasonably accommodated (issue 8). The AJ found that Complainant made out a prima facie case of reprisal discrimination on all her claims, that the Agency explained the reasons for all its actions, and Complainant did not prove these reasons were pretexts to mask discrimination, nor to the extent she was alleging, pretext to mask discriminatory harassment.
Claim 1 - Since July 2011 onward, Complainant's work assignments were given to others
Complainant's first line supervisor (S1 - Caucasian male, age 59 - 61) testified that each of his ten subordinates had specialty areas, e.g., Safety and Health Technical Support, Labor Relations, State and Local Programs, State Consultation, State Enforcement Program from Mexico, Emergency Response Operations, and so forth, and that Complainant's specialty area was Susan Harwood Grants. S1 testified that his subordinates also performed work outside their specialty areas to assist each other so the work would get done. For example, while the specialty area of one of his subordinates was audits, he could not do them by himself, so others would assist. In turn, Complainant got help from her coworkers on her Susan Harwood Grants. Hearing transcript (HT) 505 - 506. S1 testified that his program was diverse, and by its nature program areas changed, sometimes quarter to quarter, so if employees were only assigned some tasks, there would be no place to assign new work as it came in. HT 525 - 526. For fiscal year 2011, Complainant acknowledged that she was assigned work that fit within all four of her performance standards. HT 176 - 186. For fiscal year 2012, Complainant acknowledged that she was assigned work that fit within three of her performance standards (HT 209, 214), and suggested she was assigned work that fit within all of them. Agency Hearing Exhibit 2.
The AJ found that Complainant did not identify any similarly situated comparators who were treated more favorably.
Claim 2 - Learned in November & December 2011, that two others were laterally reassigned
The AJ credited the statement of Complainant's third line supervisor (S3 - Caucasian male, age 60) that he approved the lateral transfers of Coworker 1 (African-American female) and Coworker 2 (Caucasian female) because they made Hardship Transfer requests, and he was under no regulatory obligation to notify Complainant of these openings. The AJ accurately observed that Complainant did not apply for a Hardship Transfer.
Claim 3 - Effective rating on Complainant's fiscal year 2011 performance appraisal
Prior to July 2011, Complainant had a different job and different supervisor. The AJ recounted S1's testimony that he did not consider the work Complainant performed prior to July 2011, because the prior supervisor did not do an interim rating for Complainant. When asked why he rated Complainant's at the "Meet" level, S1 testified that Complainant was only in her job for 90 days when he did her performance appraisal, she was still learning the different parts of her responsibilities, and she did all of them, and that was the "Meets" level. HT 517. In finding no discrimination, the AJ wrote that Complainant's self-assessment of her own work did not establish that she was improperly evaluated.
Claim 4 - Not placed on an IDP for over one year
Consistent with statements by S3, which the AJ recounted, the AJ found that IDPs are only required for employees in the Compliance Officer Career ladder (Complainant was not a Compliance Officer), and that the record clearly established that it was Complainant's responsibility to initiate an IDP. The AJ recounted S1's testimony that all employees had the opportunity to complete and present an IDP to him. S1 testified that he did not recall Complainant complaining to him that she did not have an IDP.
Claim 5 - Effective rating on Complainant's Fiscal Year 2011 Performance Appraisal
The AJ recounted S1's testimony that aside from Complainant's performance standard on grants (on which she was rated "Exceed,") she gave no specific examples of how she exceeded her remaining three performance standards. The AJ recounted the testimony of Complainant's second line supervisor (S2 - Native American Caucasian male, age 42), who was the reviewing official on the appraisal, that he met with Complainant at her request to discuss her appraisal and reviewed additional information she subsequently provided, and he did not see examples that showed S1's ratings should be higher. The AJ found that Complainant failed to show that she was disparately treated, and her self-assessment of her own work did not establish that she was evaluated improperly.
Claim 6 - Not assigned as Acting Supervisor when her Supervisor was absent
The AJ referenced S1's testimony that because of the ten different specialty areas in his program, it took time to learn all the different areas, so he chose his most senior non-supervisory employees to act in his absence. This included two that were in the Regional Office for 15 or more years and 30 years, and Complainant was not chosen to act for a while because she had the least experience in the Regional Office. HT 530 - 532. The AJ found that Complainant offered no evidence that any other newly assigned Regional Office employee was allowed to serve as the acting supervisor, and the others who acted in S1's absence had been in the Regional Office for decades.
Claim 7 - S1 purposely incorrectly completed Complainant's OWCP CA-17 forms
The AJ found that Complainant failed to show she was disparately treated or that she suffered any injury because of this matter. The AJ, citing Commission cases, also found that claims concerning an agency submitting incomplete or faulty paperwork to OWCP fail to state a claim.
Claim 8 - Since July 2011, Complainant has been denied reasonable Accommodation
In February 2012, Complainant requested as a reasonable accommodation voice activated software - speech to text, identifying Dragon Naturally Speaking as an option.
In May 2012, Complainant made an additional request for reasonable accommodation. In response, the Agency's Civil Rights Center set up an ergonomic evaluation of Complainant's workspace. Various recommendations were made, e.g., a chair to support her neck, an adjustable keyboard tray, a footrest, and a document holder.
Complainant contended that the delays in her receipt of accommodation was so long as to constitute a denial of reasonable accommodation. The AJ found that while there were delays, they were caused by both Complainant and the Agency, and Complainant was reasonably accommodated. The AJ also found that management officials credibly testified about delays in providing the items identified in the ergonomic study. The AJ recounted that S1 did not recall Complainant telling him she was working outside her restrictions.
Our review of the record reflects, for example, that there were delays in Complainant receiving a new chair because she wanted to try different chairs. Hearing Exhibit A-5. She also asked for a different keyboard than was listed in the ergonomic study. Pleadings Binder, Exh. C, attachment 1. Further, after Dragon Naturally Speaking software arrived there was a long delay in it being installed. This was either caused by a miscommunication on Complainant's availability for the installation or a performance problem by the information technology worker assigned to do the installation. The Administrative Officer testified that she was under the assumption that the information technology person had installed Complainant's Dragon, and the day Complainant made her aware that it was not she went to her information technology person and made sure it got installed that day. HT 418.
After the AJ issued her decision, the Agency issued a final order fully implementing it. The instant appeal followed.
Complainant disagrees with the factual findings made by the AJ. Her counsel argues that the AJ engaged in misconduct. Specifically, the counsel argues that the AJ kept raising another EEO complaint Complainant filed (to steer testimony away from things covered by the other complaint), and the counsel had no knowledge of this complaint. The counsel argues that the AJ falsely and loudly admonished the counsel for deception during the hearing. The counsel argues that the AJ's ruling to postpone the hearing twice so S1 could testify was favorably biased toward the Agency.
In opposition to Complainant's appeal the Agency argues that the AJ's finding of no discrimination is supported by substantial evidence, and the AJ acted properly and was not biased.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the AJ's finding that Claim 7 fails to state a claim because it constitutes a collateral attack on the OWCP process. An employee may not use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994). Because Claim 7 fails to state a claim, we decline to address it further.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
We agree with the Agency that the AJ's findings of no discrimination on Claims 1 - 6 and 8 are supported by substantial evidence.
We find that the AJ's conduct was wholly proper. Regarding the EEO complaint Counsel did not know about, the appropriate action would be for counsel privately ask his client about it and then raise objections, if appropriate, when the AJ limited testimony on matters if they were not actually covered by the other EEO complaint. The hearing occurred during three days between April 2015 to June 2015, and Complainant's counsel did not make such an objection.
The AJ believed that Complainant's counsel deceptively questioned a witness (S1) about a document he only showed a portion thereof to S1. HT 612. Regardless of whether Complainant's counsel acted intentionally, our review of the hearing transcript does not reveal that the AJ's impression was inappropriate or biased. We also find that postponing the hearing so S1 could testify was proper. Because S1 was retired, his appearing to testify was wholly voluntary. HT 8, 23 - 24. We note that S1 did not provide an affidavit for the investigation
The AJ's finding that Claim 7 fails to state a claim is AFFIRMED. The AJ's finding of no discrimination on the remainder of the complaint 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.
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
May 9, 2018
__________________
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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