Jovan S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 12, 20180120171792 (E.E.O.C. Dec. 12, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jovan S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171792 Agency No. 200I-0320-2016101953 DECISION On April 24, 2017, 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 March 31, 2017, 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. BACKGROUND During the period at issue, Complainant worked as a Veterans Service Representative at the Agency’s Regional Office in Nashville, Tennessee. On January 29, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were not resolved. On April 27, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), color (black), and in reprisal for prior protected activity when: 1. on September 23, 2015, management issued Complainant a notice of proposed 14-day suspension for inappropriate use of government funds; 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. 0120171792 2 2. on November 25, 2015, management issued Complainant a notice of decision to suspend her for 14 days for inappropriate use of the government credit card; 3. on December 23, 2015, management rescinded the November 25, 2015, suspension decision; 4. on January 27, 2016, management issued Complainant a notice of proposed 14- day suspension for delay in paying the balance of her government-issued credit card; and, 5. on April 1, 2016, management issued Complainant a notice of decision to suspend her for five days. On June 14, 2016, the Agency issued a Partial Acceptance of the instant formal complaint. The Agency initially dismissed claims 1 and 2 for untimely EEO counselor contact pursuant to 29 C.F.R. 1614.107(a)(2). However, the Agency stated that claims 1 and 2 were sufficiently related to the overall pattern of harassment, and would be included in the overall harassment analysis. The Agency accepted the rest of the claims for investigation. After an 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s Office of Resolution Management (“ORM”) was responsible for issuing the final decision. The final decision noted that the ORM was not aware of Complainant’s grievance activity when it made the initial acceptance determination in the instant matter. It also noted that Complainant incorrectly stated in her formal complaint that she had not filed a grievance on any of the matters raised in the formal complaint. The ORM stated that on December 7, 2015, Complainant filed a grievance regarding her first suspension.2 The ORM stated that on April 14, 2016, Complainant filed a Step 2 Grievance regarding the April 2016 suspension. The ORM stated that the grievance eventually resulted in a settlement agreement where Complainant’s suspension was mitigated to a reprimand, her pay and benefits were restored, and her record was expunged. The ORM then dismissed the claims relating to the December 2015 suspension for untimely EEO counselor contact pursuant to 29 C.F.R. 1614.107(a)(2). The ORM also dismissed the claims associated with the negotiated grievance procedure pursuant to 29 C.F.R. 1614.107(a)(4). 2 The Agency only referred to this matter as “the December 2015 suspension.” This reference covers claims 1 to 3. However, the Agency referenced it as if it was just one claim. Its final decision was not clear as to exactly which claim it procedurally dismissed. 0120171792 3 However, ORM was not clear exactly which claims it wished to procedurally dismiss, that it considered the merits of the remaining harassment claims, and concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The investigative record reflects the following pertinent matters relating to the subject claims. Claims 1-3 On April 24, 2015, Complainant received $1,956.25 as reimbursement for her work-related travels. Complainant said that she believed that the money was part of her per diem costs for her travels and was meant for personal use. At the same time, Complainant was falling behind on her bills, both personal and her government travel card. The Regional Office was later notified of a past due balance on her government credit card. Specifically, Complainant’s government credit card was past due in the amount of $4,219.31. On her government credit card statement dated May 25, 2015, a payment in the amount of $2,646.69 was made directly from the Agency to Complainant’s government travel card. At that point, Complainant had a past due balance of $1,572.62. Complainant was also informed of this same information on two subsequent statements dated June 23, 2015 and July 23, 2015. On June 9, 2015, Complainant contacted a bankruptcy attorney. On June 12, 2015, Complainant filed a bankruptcy petition, with a court filing date of June 24, 2015. Complainant included her government travel card in the bankruptcy filing. On July 13, 2015, Complainant met with the Assistant Manager (Caucasian, female) regarding the debt. Complainant informed the Assistant Manager that she was unable to pay the government credit card bill at that time due to the bankruptcy filing. On September 23, 2015, management issued Complainant a notice of proposed 14-day suspension for Inappropriate Use of Government Funds based on the above stated event. The proposal stated that Complainant failed to use the funds provided on April 24, 2015 to pay the balance on her government credit card. Complainant was provided a chance to reply to the proposed suspension. Complainant explained to management that she was not aware that the April money was meant for the card payment, that there was much confusion surrounding the travel, and reimbursements, and that the Agency was punishing her for mistakes outside of her control. The Assistant Manager stated that Complainant was aware of her responsibilities to timely, and fully, pay off balances associated with the government credit card bill. Her failure to do so led to the proposed suspension, not her protected classes. On October 9, 2015, Complainant paid the balance on her government credit card in full. 0120171792 4 On November 25, 2015, a decision was rendered to suspend Complainant for fourteen calendar days from December 6, 2015 through December 12, 2015, and January 24, 2016 through January 30, 2016. On December 7, 2015, Complainant filed a grievance regarding the November 25, 2015 suspension. On December 23, 2015, the November 25, 2015 suspension decision was rescinded by the Manager (Caucasian, female) because it was determined that Complainant’s misconduct was charged inappropriately. At that point, Complainant had served five calendar days of the suspension, December 6, 2015 through December 12, 2015. As a result of the rescission, Complainant was paid for the suspension period that she served. Complainant did not serve the second week suspension period of January 24, 2016 through January 30, 2016. Claims 4 and 5 Prior to being issued the second suspension, Complainant asserted that the Manager informed Complainant’s union representative that if Complainant apologized, she would not be suspended. Complainant stated that she felt insulted, and refused to apologize. On January 27, 2016, the Assistant Manager issued Complainant a proposed suspension for Delay in Timely Payment of Government Credit Card. The Assistant Manager discussed this matter with Complainant the same day she issued it to her. Complainant felt that she was being punished for the same issue and the same punishment she had already received. Complainant asserted that she had already suffered through one week of suspension without pay. Even if she was later paid for the suspension, she felt that the stress alone and not working the week was punishment enough. The Assistant Manager stated that since the initial suspension had been rescinded, and Complainant was paid for the one week served, Complainant had not actually received any punishment for her actions. On April 1, 2016, management issued Complainant a notice of decision to suspend her for five days. Complainant served the suspension from April 11, 2016 through April 15, 2016. On April 14, 2016, Complainant filed a Step 2 Grievance regarding the April 2016 suspension. On March 2, 2016, management denied the grievance. On March 3, 2016, Complainant filed a Step 3 Grievance concerning the matter. Management denied that grievance on May 13, 2016, whereupon Complainant immediately invoked arbitration under the Master Agreement. Arbitration resulted in a Settlement and Compromise Agreement dated September 20, 2016. Pursuant to this agreement. Complainant’s suspension was mitigated to a reprimand, her pay and benefits were restored, and her record was expunged. 0120171792 5 Comparator Complainant stated that a former white, male employee (hereinafter referred to as “E1”) had similar charges and only received an admonishment. His bill was 60 days overdue when the admonishment was issued. He filed a grievance regarding the admonishment and it was rescinded by the Manager, and no other punishment was given to him. E1 was initially given the admonishment by another manager at the Agency. The Assistant Manager stated that the punishment had nothing to do with Complainant’s protected classes. She stated that the first suspension was only rescinded because it was determined that the charge, Inappropriate Use of Government Funds, was not as appropriate as the charge of Delay in Timely Payment of Government Credit Card. She noted that she had previously issued a suspension another black, female employee who also did not timely pay her government credit card bill. Based on this evidence, the Agency determined, in its final decision, that Complainant had failed to prove her claims of discrimination. The instant appeal followed. Complainant asserts that the ORM inappropriately ignored the comparator evidence that she had previously submitted. Complainant argues being subjected to two separate suspensions for the same issue is harassment by itself. Complainant argues that management’s statement that the initial suspension was rescinded purely based on the “inaccurate charge” was pretext for harassing her. Complainant notes that the Manager wanted her to apologize, and in return, the Manager would rescind the suspension. However, Complainant stated that she refused to beg for forgiveness, and was therefore subject to the second suspension. Complainant asserts that the billing issues were the result of poor Agency management, and that she should not be penalized because the Agency could not pay the bills accurately. Complainant argues that it was clear that the Manager, and the Agency discriminated against her when compared with a white, male comparator, who for a similar incident, only received an admonishment. ANALYSIS AND FINDINGS As a preliminary matter, we note this complaint has had a series of procedural dismissals that could be considerably confusing, as delineated below. First, the Agency initially dismissed claims 1 and 2 for untimely EEO Counselor contact. However, the Agency accurately determined that the claims were sufficiently connected to Complainant’s overall hostile work environment claim, and accepted claims 1 and 2 for investigation. The confusion occurs later, in its final decision, when the Agency stated that it procedurally dismissed “two claims” associated with Complainant participating in the negotiated grievance procedure. 0120171792 6 However, the Agency did not specify exactly which two claims it was dismissing other than to reference the claims associated with the “December 2015 suspension” and the April 2016 suspension. We note here that claims 1 to 3 are all associated with the December 2015 suspension, and claims 4 and 5 are associated with the April 2016 suspension. In that same decision, it stated that since it dismissed those “two” claims, it would not consider them for the final analysis. The Agency proceeded to provide a fairly basic analysis of the instant complaint. We also note, that despite the Agency’s pronouncements that certain claims should be procedurally dismissed based on Complainant’s election to pursue the negotiated grievance procedure, the record is devoid of any documentation demonstrating this. Clearly, it is the burden of an agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Despite the confusing background, we find that the investigation properly included all five claims. Therefore, in the interest of judicial efficacy, we will review all five claims under a merits analysis. Disparate Treatment 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, he 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. 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). 0120171792 7 Even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here, Complainant acknowledged that she did not timely pay her government credit card. She argued that payments and reimbursements surrounding her recent travel were confusing, and believed that the April 24, 2015 payment of $1,956.25 was meant for her to personally keep. Agency management believed that Complainant had inappropriately used government funds by failing to pay off her card balance upon the $1,956.25 reimbursement. Therein, the Agency charged Complainant with Inappropriate Use of Government Funds (claims 1 and 2). On the second day of the suspension, Complainant filed a grievance on the matter. Shortly after, the suspension was rescinded, with Complainant having served five calendar days of the suspension. Due to the rescission, Complainant was paid for the suspension period that she served, and she did not serve the second week suspension period of January 24, 2016 through January 30, 2016. In its rescission, there were no statements made that Complainant would not disciplined in any other manner. The rescission merely informed Complainant that the suspension was rescinded because it was determined that she was inappropriately charged (claim 3). The Agency later issued Complainant a second suspension where she was charged with Delay in Timely Payment of Government Credit Card (claims 4 and 5). Here, Complainant acknowledged that she failed to make appropriate and timely payments. But she attempts to place the blame on poor Agency management of the reimbursements. We are not convinced by Complainant’s arguments. Moreover, we are not convinced that the Agency’s initial rescission, and subsequent suspension was done in a manner to harass Complainant. Complainant asserts stress due to her personal financial situation, and initial suspension. However, we also look at the seriousness of a government employee failing to make timely and full payments on a government credit card. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048. Here, the Agency had to find an appropriate manner in which to discipline an employee charged with failing to timely pay a government credit card. While Complainant argues the discipline was unequal, and cited to E1’s treatment, we find that there was nothing about the management’s methods in either situation that would demonstrate that Complainant was the subject to discriminatory treatment. 0120171792 8 In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory animus. Complainant has not provided any evidence that suggests that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved. Harassment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis – in this case, because of her race, color, sex, or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant has cited her belief that she was subject to double jeopardy, and that it was intentionally hostile, adverse and disruptive to her. However, Complainant has produced no evidence to establish that her race, color, sex, or prior EEO activity was a factor in any of these actions. The record simply does not show that the responsible Agency officials acted with discriminatory or retaliatory animus towards Complainant. CONCLUSION The Agency's final decision finding no discrimination is AFFIRMED. 0120171792 9 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. 0120171792 10 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. Carlton M. Hadden, Director Office of Federal Operations December 12, 2018 Date Copy with citationCopy as parenthetical citation