0120162726
03-05-2018
Karan F.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karan F.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120162726
Agency No. BOR160133
DECISION
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 11, 2016, final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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 Certifying Officer, GS-8 (Lead Accounting Technician), at the Agency's Financial Accounting Division, Denver Federal Center facility in Denver, Colorado.
On January 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race ("Multicultural"), national origin (Latin American / Hispanic), religion (Roman Catholic), color (Brown), disability (left foot injury), age (68), and reprisal for prior protected EEO activity under Title VII, when:
1. On November 2, 2015, Complainant became aware that management lowered her performance appraisal for fiscal year 2015; and
2. During the week of November 2, 2015, Complainant's supervisor made sarcastic comments about the use of her cane.
The record shows Complainant has held the position of Certifying Officer since 2001. Her first line supervisor is the Branch Manager, Finance and Accounting Division, BOR (Caucasian, White, Christian, Mexican American, 67)) (RMO1). He was the named responsible management official.
The pertinent record reveals that Complainant has filed three prior complaints which Complainant states were known to management since she filed the complaints against the manager who is named in this complaint. At the time of the issuance of the higher performance rating, Complainant reported to a different supervisor who has since left the Agency. RMO, who became her supervisor, denied that he knew about her prior EEO activity.
Complainant uses a cane. She says that the managers are aware that she uses a cane to assist her while walking.
Claim 1: Lowering of Complainant's performance evaluation
On November 2, 2015, Complainant's supervisor RMO1 called Complainant into his office. He told Complainant that RMO3 lowered her performance evaluation numeric rating. Complainant was shown the evaluation rating. She was told that that her former supervisor did not follow the vetting procedure for all exceptional ratings. Her evaluation was lowered because Complainant failed to submit her evaluation comments within the designated time limit. The supervisor told Complainant that it was now his responsibility to review the Exceptional performance evaluations. He believed that the documentation that he had been provided did not support the Exceptional rating. Complainant contends that her new supervisor should have contacted her former supervisor and questioned him for more information regarding the rating that he gave Complainant, rather than lowering her numeric rating.
RMO1 also lowered two other employee's ratings from Exceptional to Superior. Both were Caucasian and younger. One was Anglo and one was Latino. Complainant conceded that she did not know if the supervisor was aware of her religion.
Complainant stated that she believed disability was a factor in her allegations because RMO1 mentioned that he was not used to seeing Complainant using a cane.
Claim 2 - Supervisor's comment
Regarding the claim of a sarcastic comment, the supervisor acknowledged that he, at some point, probably did tell Complainant that he could not get use used to seeing her use a cane, but he averred that it was not done in a sarcastic manner. Regarding a separate, second incident, Complainant averred that the supervisor stated "oops - almost hit your cane" when he and Complainant almost collided, while they were walking in the same walkway. Complainant stated that he did not apologize. RMO1 averred that he did apologize to Complainant for that incident.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency Decision
The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency reasoned that the claim fails because Complainant failed to show that a similarly situated comparator outside Complainant's protected class was treated more favorably and she failed to show that the action was due to her race, color, religion, sex, age, disability or prior EEO activity. The Agency stated that the evaluation was lowered because the supervisor's review showed that the rating was not supported. The Agency found that Complainant had not shown the reasons to be a pretext for unlawful animus.
Although the Agency dismissed claim 2 for failure to state a claim, the Agency analyzed the claim on the merits. With regard to the claim that a sarcastic comment was made, the Agency reasoned that the supervisor denied that he made any comments in a sarcastic manner and that he had apologized for almost hitting her cane. The Agency found that Complainant failed to produce any evidence to show that the comments or actions were based on her race, color, religion, national origin, age or reprisal. This appeal followed.
Neither party submitted a brief on appeal.
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").
Race, Color, Religion, and National Origin / Retaliation
Section 717 of Title VII states that "[a]ll personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination based on race, color, religion, sex or national origin." Similarly, Section 633(a) of the ADEA requires federal agencies to make all of their personnel actions free of age discrimination. In addition, Title VII's federal sector law requires federal agencies to proactively ensure that the workplace is made free of discrimination, including retaliation.
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 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
The named management official stated that he was not aware of Complainant's age. Complainant acknowledged that she did not know if any of the management officials were aware of her religion. She introduced no evidence to support her claims of age or religious discrimination. In this case, the record shows that the official who lowered her performance rating was in the same protected groups as Complainant and was unaware of her prior EEO activity, age and religion. Moreover, the record established that others who were not in her protected group were treated similarly as their performance ratings were also lowered.
Complainant had engaged in prior EEO activity when she initiated an EEO complaint in 2004, 2008 and 2012. The named management official stated in his affidavit that he was not aware of Complainant's prior EEO activity.
Even assuming that Complainant established the elements of her prima facie claims, the Agency articulated a legitimate, non-discriminatory reason for its action in lowering her performance evaluation. The Agency stated that the appraisal was lowered because RMO3 had the responsibility to review Exceptional Performance evaluations after he discovered that the previous supervisor had not done a proper review. After reviewing the evaluation, he determined that there was insufficient evidence to support the rating. Complainant introduced no evidence to show that the stated reasons were a pretext for discrimination.
Disability Discrimination
The Rehabilitation Act Section 501, as amended, applies the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. The ADA says that an employer may not "discriminate against a qualified individual with a disability." Disability is defined as pertaining to an individual who has a physical or mental impairment that substantially limits one or more of the major life activities "or is regarded as having such impairment; a record such an impairment or being regarded as having such an impairment," 29 C.F.R. � 1630.2(g). An individual may establish coverage under any one or more of these. Employers are also required to provide reasonable accommodation for qualified individuals with a known disability.
With regard to her disability claims, as a threshold matter, we consider whether Complainant was disabled within the scope of the Rehabilitation Act. The Agency found that Complainant established that she had a permanent medical condition that substantially limited a major life activity of walking. For purposes of our analysis, we find that Complainant met her burden of showing that she is a qualified individual with a disability.
There is no evidence, however, that she was treated differently than others who had no known disability. We find that Complainant failed to show that the Agency discriminated against her based on her medical condition when he lowered her performance rating. In addition, there is no claim of a denial of reasonable accommodation.
With regard to claim 2, the Supervisor denied that he made sarcastic or demeaning comments about her use of her cane. Moreover, without more, we conclude that these isolated remarks are insufficient to establish Complainant's claim of discriminatory harassment. As such, we find that Complainant's second claim fails.
Complainant did not establish, by a preponderance of the evidence, that the stated reasons were a pretext for unlawful animus. For these reasons, we find that the Agency's Decision is supported by the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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
March 5, 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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