0120150925
01-22-2016
Jillian B.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jillian B.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120150925
Hearing No. 560-2013-00192X
Agency No. 9V1M12103
DECISION
On January 5, 2015, Complainant filed an appeal from the Agency's December 2, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. � 2000ff et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Management Specialist at the Agency's Tinker Air Force Base facility in Oklahoma.
On April 26, 2012,2 Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female), disability, genetic information (family history of cancer and heart disease), age (51), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. On or about December 19, 2011, she was denied access to personal files, e-mails and financial software that resulted in her inability to complete suspense on AGE Open MORD Validations, Semi-Annual ASD Financial Management Checklist, Fund Status and FY12 Reimbursement Program balancing;
2. On December 19, 2011, she received an administrative notice for possible disciplinary action;
3. On January 5, 2012, her supervisor (Supervisor) detailed her from OC-ALC GKX (Logistics Branch) office to OC-ALC GKO (Operations and Management section) office;
4. On January 9, 2012, she received a Notification of Suspension of Access, dated January 6, 2012, suspending her access to classified information/unescorted entry into restricted areas;
5. On January 9, 2012, her security clearance was revoked by her second-level supervisor (SL Supervisor);
6. On January 9, 2012, she was required to send her supervisor an e-mail informing her of her reported time to duty and end of the day departing time;
7. On January 9, 2012, the SL Supervisor's statement reflected she had an alleged gambling problem and that her alleged gambling problem led to potential travel card abuses and caused a lack of trust in her ability to perform her duties as a Financial Management Specialist;
8. On March 13, 2012, she received a Notice of Decision to Suspend for Five (5) Days, effective March 19, 2012, through March 26, 2012;
9. On April 26, 2012, she received a 971 write-up for failure to follow call-in procedures;
10. On May 4, 2012, she received a Notice of Decision to Suspend for Ten (10) Days, effective May 7 through May 16, 2012;
11. On June 27, 2012, she was given a Notice of Decision to Suspend for Fourteen (14) Days, effective July 9 through July 22, 2012;
12. On October 17, 2012, her request for a copy of her Core Personnel Document was denied;
13. On October 18, 2012, she inquired with the SL Supervisor about 72nd Medical Group phone call. The inquiry to the Supervisor resulted in her third-level supervisor (TL Supervisor) putting her on notice, "that no longer will your disrespectful, condescending tone and demanding attitude be tolerated"; and,
14. On October 22, 2012, she received a "For Official Use Only" e-mail from the SL Supervisor with an attachment that addressed job abandonment which she feels threatened her.3
15. In November 2011, Complainant was bombarded with daily emails from the Supervisor and the SL Supervisor.
16. At a meeting on December 19, 2011, she was threatened by the SL Supervisor.
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 (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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 (Claims (1) - (12))
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, he or 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; 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. 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 on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided legitimate, nondiscriminatory reasons for its actions. As to claim (1), the Supervisor indicated that Complainant had full access which was supported by email exchanges between Complainant and the Supervisor. As to claim (2), the record indicated that in October 2011, the Supervisor was informed that Complainant was 60 days delinquent in paying her Government Travel Credit Card (Credit Card) and that she had used the Credit Card to take out over $900.00 in ATM cash advances. The Supervisor told Complainant not to use the Credit Card for cash advances. In November and December 2011, Complainant took out a total of $660.45 in cash advances with the Credit Card. The Agency noted that two of the cash advances took place in separate locations at Goldsby Casino. As such, on December 2011, Complainant was issued notification of possible disciplinary action based on Complainant's inappropriate use of the Credit Card. Further, Complainant was detailed in January 2012, pending the investigation into the use of the Credit Card.
As to claim (5), Complainant's security clearance was suspended while a final security clearance determination was being made by the Agency. As to claims (4) and (7), Complainant was issued a memo regarding the suspension of her access to classified information/unescorted entry into restricted areas. The SL Supervisor averred that a security determination had been made due to alleged gambling problems based on Complainant's Credit Card abuse issues.
In claim (6), Complainant asserted that she was the only person required to email the Supervisor regarding her report to duty time and her departure time. The Supervisor noted that Complainant was on detail but she was still in charge of her duty hours. Since they were not in the same area, she
In claims (8) and (10), Complainant was issued a notice of a five day suspension and a ten day suspension. The five day suspension was issued for Complainant's failure to pay her Credit Card bill. Complainant was issued a ten day suspension for her continued delinquency in paying her outstanding Credit Card bill. In claims (9) and (11), Complainant indicated in April 2012, to the Supervisor that she was going to do a "voluntary deferred retirement" via email. The Supervisor asked Complainant to clarify as to whether she was planning on resigning. Complainant failed to respond to the Supervisor and then failed to report for duty or request leave in April 2012. As a result, Complainant was issued the fourteen day suspension.
As for claim (12), the Supervisor denied that she refused to provide Complainant with a copy of her personnel documents as Complainant requested in October 2012. She noted that Complainant had been provided with the personnel file in July 2012, and the document she sought had not changed since Complainant was issued it in 2011 and 2012.
We now turn to Complainant to establish that the Agency's reasons were pretext for unlawful discrimination. Complainant failed to provide evidence that the Agency's actions continued discrimination based on her sex, age, disability, genetic information, and/or prior EEO activity. Accordingly, we conclude that the Agency's final decision properly concluded that it did not subject Complainant to disparate treatment.
Harassment (Claims (1) - (16))
It is well-settled that harassment based on an individual's sex, age, disability, genetic information and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to his/her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on her sex, age, disability, genetic information and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that Complainant failed to show that the alleged harassment complained of was due to her protected bases and/or prior EEO activity. As such, we conclude that Complainant failed to show that the alleged actions constituted harassment in violation of Title VII, the ADEA, the Rehabilitation Act, and/or GINA.
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 no discrimination.
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
January 22, 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 note that Complainant amended the complaint after she filed her formal complaint.
3 The record indicated that Complainant also alleged discrimination when the Supervisor submitted documentation contradicting her claim with the Office of Workers Compensation Program. The Agency dismissed that claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150925
2
0120150925