0120161012
05-11-2016
Josephine S.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josephine S.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120161012
Agency No. DOI-FWS-14-0274
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 28, 2016 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.2
BACKGROUND
During the period at issue, Complainant worked as an Office Assistant at the Agency's Migratory Bird Program in Atlanta, Georgia.
On July 1, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of disability and in reprisal for prior protected activity when:
1. on May 1, 2014, she received disciplinary action from her second-level supervisor for following a directive from her first-level supervisor;
2. on May 14, 2014, Complainant received a memorandum from her supervisor which delayed approval of her request to receive Family Medical Leave Act (FMLA) benefits. Subsequently, on November 4, 2014, Complainant's supervisor denied her request for leave or approved absence, based on reasons that violate the FMLA;
3. on June 9, 2014, she received a memorandum from her supervisor that omitted a health condition submitted by Complainant's physician in Complainant's request for FMLA benefits and threatened to charge her as Absent Without Leave if she did not adhere to the conditions set forth in the memorandum even though the condition violated Health Insurance Portability and Accountability Act rights to privacy;3
4. on November 3, 2014, she received a Letter of Reprimand for failure to follow instructions;
5. on December 24, 2014, her supervisor submitted a fraudulent timesheet for her, for the pay period ending on December 27, 2014;
6. on January 7, 2014, she became aware that she was discriminated against when on October 24, 2014, her supervisor delayed the evaluation of her performance for FY 2014 because the supervisor claimed the Complainant's foot injury prevented her from performing her essential job functions, which caused Complainant not to receive a with-in-grade increase on December 14, 2014; and
7. on January 7, 2014, she became aware that she was discriminated against when from May 30, 2014 through September 23, 2014, the Migratory Bird Program did not provide her with an accommodation even though she submitted a reasonable accommodation request.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 28, 2016, pursuant to 29 C.F.R. � 1614.110(b).
In its March 28, 2016 final decision, the Agency found no discrimination. Specifically, the Agency found that Complainant did not establish a prima facie case of disability and reprisal discrimination.4 The Agency further found that assuming arguendo that Complainant established a prima facie case of disability and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, Complainant's supervisor stated that Complainant was issued a Letter of Counseling by the former Assistant Regional Director for violating Agency policy by sharing her password. The supervisor stated that she did not have any role in this matter and "never had a discussion with Complainant regarding this letter."
With respect to Complainant's allegation that the supervisor instructed her to share her password with another employee, the supervisor denied this assertion. Specifically, the supervisor stated "I did not instruct [Complainant] to share her password. The other employee, [employee], and I, were doing a lot of work one night. We talked to Complainant about [employee] using her scanner, and then I left the conversation while they continued to discuss this matter. Complainant was leaving the office later, and she indicated to [employee] that she left the password on the desk for [employee] to use. [Employee] asked if Complainant was sure, because she thought she was going to use a temporary password. Complainant responded that she was find with her using the password, and then left. [Employee] did use Complainant's computer password and computer. We did not know we could have logged onto the computer as [employee], and then there would have not been an issue. We all received a Letter of Counseling in this matter."
Regarding claim 2, the supervisor denied Complainant's allegation that on May 14, 2014, she received a memorandum from her that delayed approval of her request for FMLA benefits. The supervisor stated that after Complainant submitted a request for FMLA benefits to Human Capital, Human Capital "indicated to me that the information she submitted was the same she submitted the prior year, and they needed the physician to look at the position description and note what she was able and not able to do in the position description. This did not delay the approval of her request. She was informed she could continue to use FMLA during this time, and she did use FMLA benefits during this time. I informed her via email that she could use FMLA codes for her time until May 30, 2014."
With respect to Complainant's claim that on November 4, 2014, the supervisor denied her request for leave or approved absence based on reasons that violate the FMLA, the supervisor denied it. The supervisor stated that Complainant's request for advanced sick leave was denied because Agency management had doubts about Complainant's ability to pay back the leave, and because Agency management believed Complainant would need sick leave available when she returned to work.
The Deputy Chief, also Complainant's second-level supervisor, stated that the supervisor consulted him regarding Complainant's November 4, 2014 request for advanced sick leave. The Deputy Chief stated that he spoke with the supervisor concerning Complainant's request for advanced sick leave, and they consulted with several Human Resources representatives and the Solicitor's office "on how to handle this request." Specifically, the Deputy Chief stated that Complainant "had demonstrated a pattern of exhausting paid leave nearly as it was earned, used paid leave regularly to cover FMLA and other absences. Our denial was based in part on concerns that Complainant would not be able to repay the considerable amount of advanced sick leave requested, given her prior pattern of leave usage, and also the concern that she would not have paid leave available to cover future absences. I do not have knowledge that this decision violated her FMLA rights; this absence was not requested to be covered under FMLA."
Regarding claim 3, the supervisor stated that she issued Complainant a memorandum regarding Complainant's FMLA request. The supervisor stated "I did not say 'chest pains' was not included because she had a disability. I was informed by Employee Relations that 'chest pains' was a symptom, which is why I indicated it was not included. I did not believe I could question her other medical conditions. I would believe that Employee Relations decided that is based on other health issues he has reviewed in other applications...I did not know what qualifies as a disability and what does not, and her disability is not part of any of my determinations."
With respect to Complainant's allegation that the conditions in the memorandum violate HIPAA [Health Insurance Portability and Accountability Act] rights to privacy, the supervisor stated "I would not believe the conditions would violate HIPAA, but I would not know for sure. I do not know why Human Capital would advise me to take an action that violated HIPAA. The memorandum indicated that [Complainant] had to identify the condition she was going to be out for if she was going to use FML [family medical leave]. This was based on the specific indications she had made of her medical conditions. She has not provided this information when she has requested FML time, and that has not been an issue. She just needed to provide a medical certification signed by a practitioner indicating exam or treatment, and the memorandum did not indicate that she had to give details regarding the treatment she received; only that she was under medical condition, and then to identify the medical condition if she was going to use FMLA for that time. This verbiage came from Human Capital."
Regarding claim 4, the supervisor stated that on November 3, 2014, she issued Complainant a Letter of Reprimand for failure to follow instructions. Specifically, the supervisor stated that Complainant was given a task to perform on October 22, 2014, and she did not complete the task by the deadline of October 24, 2014. She was asked to mail out some signed permits and scan some permits for examiners, and then to mail that information...I gave her nine hours to complete a task that should take about one hour. We have discussed in the past that she should prioritize this task over other tasks."
With respect to Complainant's allegation that traditionally there are three days to complete tasks, the supervisor stated "there has never been a specific amount of time agreed to do such work. The priority level of the different requests are different, and I look at the type of permits, and then determine the deadline for each request. There is no set time. As of close of business on October 28, 2014, [Complainant] had not completed the requested work."
Regarding claim 5, the supervisor acknowledged submitting a timesheet for Complainant for the pay period ending on December 27, 2014. Specifically, the supervisor stated "for this particular year, we were given two days of paid holiday instead of the one day for Christmas. I thought it would be nice to give Complainant some of my leave for the day before and after these two holiday days. I sent over my leave donation, and contacted the person who handled leave donations. He indicated my donated leave was now on the books, and it was the only donated leave on the books for Complainant. I had talked to the Finance Center in the past regarding similar situation. Complainant was currently on LWOP, and she stated she wanted to go back on Leave Share status on December 22, 2014. I knew she did not have any leave available at that time, so when I did her timesheet, I put the time in as LWOP. If I had entered her time as LSS [Leave Share Status], they would have used all of the donated leave before the 24th, which would have put her on a non-paid day status, which meant she would not get paid for the two holiday days. I put her on LWOP on the 22nd and 23rd, and then put her on LSS for the 24th and 29th. This put her on leave status to ensure she was covered for those two days and would receive holiday pay."
Further, the supervisor stated that on January 5, 2015, Complainant returned to work and "during that timeframe, another person had donated leave to Complainant. I was not aware of the additional leave at the time I put in her timesheet. It was not on the books at the time I checked. When [Complainant] became aware of the additional leave, she said that I prevented her from getting paid for the leave. I was trying to help her get paid for the holiday days. We did an amended timesheet to allow her to be paid for the additional days of leave that had been donated. Complainant said something to [Regional Director], about this situation, and [Deputy Director] sent me an email about this matter. That was the first I had been aware of the additional days. I honestly believe that what happened is that someone donated the leave the week of the 29th. [Complainant's] timesheet had to be put in before the 24th or she would not get paid at all. I think if I would have coded her the way she wanted me to, she would have not been paid for the holiday days since the leave was not donated until after the pay period. I had no knowledge of the additional leave when I submitted the timesheet."
Moreover, the supervisor stated that she was told that if Complainant uses LSS and "she has any Leave Share that is donated to her, the system will go back and credit her the hours that were LSS. That is how I knew that the system would pick up the 16 hours I donated to her. It would go back 12 months if other hours were donated. I coded her for LWOP because she would not have been covered for the two days of holiday pay."
Regarding claim 6, the supervisor stated that she delayed the evaluation of Complainant's performance for FY2014 because of Complainant's foot injury. Specifically, the supervisor stated that she notified Complainant that she took this delaying action "because [Complainant's] health issues did not allow her to perform he essential functions of her job from June through early October 2014. This notice was sent to her on October 24, 2014. I extended the evaluation period to January 31, 2015."
Further, the supervisor stated that Complainant was rated as "Fully Successful." The supervisor stated that Agency management "choose to not use the timeframe of June 2014 through January 2015 in creating the rating. We thought it was best to not include that information because she would have been rated "Unsuccessful" because she was unable to perform her duties as assigned, and there were so many other issues we were dealing with Complainant during that time."
Regarding claim 7, the supervisor acknowledged that on May 30, 2014, Complainant submitted a request for reasonable accommodation. The supervisor further stated that on June 9, 2014, she sent Complainant a letter indicating that her work duties "could only be performed in the office. She was asking for telework for two days per week and to limit any duties that required her to walk over 25 feet from her desk. I told her that the medical documentation from [Complainant's named representative] did not support her request for an accommodation. He had only indicated she needed to wear a tennis shoe to work and use an elastic support."
The supervisor stated that on June 26, 2014, Complainant requested another accommodation. Complainant stated that, for six months, she should have the following restrictions: "no lifting or carrying more than five pounds at any time, and no prolonged standing or walking (although she could walk to the filing area, she should be seated when actually filing)." The supervisor stated that at that time, she (the supervisor) was planning to be on leave for two weeks. The supervisor therefore informed Complainant that she was handing her request to another manager to handle during her absence. The supervisor stated that it was her understanding that Complainant received a letter from [Manager] that indicated her request would not be covered under the Americans with Disabilities Act (ADA), and "indicated that she needed to speak to me or [Manager] regarding her medical restrictions. It was decided this was a transitory injury, and did not actually fall under the ADA requirements for a disability."
However, the supervisor stated that Complainant was provided a chair in the filing area and a char to use in the copy room "so she could sit down while making copies if she needed to. We offered to provide assistance from other employees to transport documents that were five pounds or more. We got together again on September 23, 2014, and she was provided a mobility cart. On July 11th, [Manager] and Complainant met to discuss her restrictions. [Manager] gave me a write up of what she discussed with Complainant...when I returned on July 18, 2014, and [Manager] got back with Complainant, and stated that anything that involved walking would take her a little longer. There was no problem with that request."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 11, 2016
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Lisa M. Kemper
PO Box 864
Pine Lake, GA 30072
John Burden, Director
Office of Equal Opportunity
Department of the Interior
1849 C St., NW #MS5221
Washington, DC 20240
__________________
Date
______________________________
Compliance and Control Division
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 Complainant filed an appeal before the Agency's issuance of the instant final decision. The Commission acknowledged the appeal on February 29, 2016, and docketed it on the same day.
3 A fair reading of the record reflects that the "omitted health condition" was "chest pains."
4 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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