0120170685
10-10-2018
Kandace I.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kandace I.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120170685
Agency No. ARHOOD15APR01350
DECISION
On November 15, 2016, 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 October 27, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant establish that she was discriminated against and subjected to a hostile work environment based on her age, and physical disability (Rheumatoid Arthritis, Plantar Fasciitis, Graves' disease and hyperthyroidism) on April 14, 2015, when her first line supervisor asked about the status of her retirement papers, and when she was going to retire; and on April 16, 2015, when her second line supervisor asked the same questions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Receptionist GS0304-04 at the Agency's Carl R. Darnall Army Medical Center facility in Fort Hood, Texas. On May 19, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her as stated above. The two supervisors explained that their questions as stated by Complainant were motivated by concern and a desire to assist Complainant in her retirement process.
The facts of this case are detailed in the Final Agency Decision (FAD) but are summarized in pertinent part as follows:
Complainant alleged that a coworker created a hostile work environment for her by snatching a phone out of her hand, telling her she could not have a cup on the desk, and telling Complainant that she needed to call her if she was not going to come to work. Complainant stated that she was not accustomed to this type of treatment from a peer. She contends that when she reported these incidents to management, nothing was done.
Complainant's first line supervisor, S1 stated that Complainant works by herself and she has not observed any obvious turmoil or hostility in the workplace. She testified that she was aware that there were some issues between Complainant and her coworker, but did not know any of the details.
Complainant stated that she applied for medical retirement in February or March 2015. She alleged that, on April 14, 2015, S1 came out of S2's area and asked her in a very nice and polite way about the status of her medical disability retirement papers. Complainant told her that it takes about a year and S1 accepted the answer.
S1 stated she only asked Complainant about her disability retirement one time. She maintained that she did not specifically recall asking Complainant on April 14, 2015, when she was going to retire. She indicated that the question probably stemmed from Complainant missing a few days prior and she was inquiring how she was doing.
S2 stated that he could not remember with clarity, but might have asked S1 to inquire as to whether Complainant submitted her medical retirement request and whether she needed any assistance with this matter.
Complainant alleged that two days after the conversation with S1, S2 came to her and asked about the status of her medical disability retirement papers. She also told him that it takes about a year and he got "very aggressive" with her and adamant that she give him a date. She contends that S2 had previously asked the same question four or five times.
S2 stated he might have been direct, but he does not remember being aggressive when asking Complainant about the status of her medical retirement request. S1 denies any knowledge of the conversation S2 had with Complainant on April 16, 2015. She stated that she has never seen S2 act in an aggressive manner. (Investigative Transcript [IT] pp. 41 - 55).
In response to the claim that he asked Complainant about her medical retirement request status on multiple occasions, S2 stated that he was just trying to get the information so he could help Complainant process her retirement and figure out where it was at in the process. (IT pp. 56 - 69).
Complainant alleged that when S2 confronted her about her medical disability retirement papers, he also told her she needed to get along with her coworker. S2 stated he was aware that Complainant had issues with her coworker, but he believed S1 addressed the matter.
Both S1 and S2 testified that they were aware that Complainant was transferred from the Emergency Room to Patient Services as a reasonable accommodation due to her medical condition. However, S1 and S2 both maintained that Complainant's age or disability was not a determining factor in their questions to her.
Complainant claims that one of the bases of her complaint is age, "Because looking at the choices that you have when you went to file this discrimination case it says age or age and/or disability. It's kind of like grouped together there. So that's how the age got in it." She said, "I don't know if my age is a big problem or issue for them, but I do believe that my medical condition is." She also stated that management was asking about her medical disability retirement and "Retirement usually is an age thing" (IT pp. 5 - 40 & 86].
Complainant also stated that she did not believe she should be "badgered" about the status of her medical retirement request each time she returns from a day or two absence. She contends that management should not ask her about the status of her request, because the application states that the employee and management will be informed of the decision at the same time.
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. In accordance with Complainant's 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.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. The Agency, among other things, requests that we affirm its final decision.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of and age and disability discrimination; we find that the Agency articulated reasonable, nondiscriminatory explanations for its actions. Although Complainant did not believe she should be "badgered" about the status of her medical retirement request each time she returned from a day or two absence, she provided no persuasive evidence that S1 and S2's inquiries about the date of her medical retirement were based on her age or disability; therefore, we find no evidence of pretext.
Complainant contends that management should not have asked her about the status of her request, because the application states that the employee and management will be informed of the decision at the same time. However, S2 explained he only inquired about Complainant's status because he wanted to know if she needed help with the process. Moreover, we note her assertion that she was discriminated against based on her age because age and disability are grouped together as choices of discrimination basis.
Complainant also alleged that her coworker created a hostile work environment for her by snatching a phone out of her hand, telling her she could not have a cup on the desk, and telling her that she needed to call her if she is not going to come to work. Complainant stated that she was not used to being treated as alleged. However, we find no evidence that the co-worker's actions were based on Complainant's age or disability, nor do we find that the behavior, even if it occurred as alleged, was severe or pervasive enough to affect the terms of Complainant's employment.
We therefore find that, under these circumstances, Complainant's allegations are not supported by the totality of the record and complainant has failed to present any plausible evidence that would demonstrate that management's reasons for its actions lacked basis in the facts of the case or resulted from nonlegitimate and other motivations not articulated by the Agency.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision because the preponderance of the evidence in the record does not establish that discrimination occurred.
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
_10/10/18_________________
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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