0120141621
08-10-2016
Karren N.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karren N.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120141621
Agency No. BLM130059
DECISION
On March 25, 2014, Complainant filed an appeal from the Agency's February 18, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant on the basis of reprisal for prior EEO activity when on October 19, 2012, she discovered that her unofficial 2011 Employee Performance Appraisal Plan (EPAP) was uploaded onto her electronic Official Personnel Folder (eOPF), after being told it would not be uploaded; and when her 2012 EPAP was improperly initiated and uploaded onto her eOPF.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician at the Agency's Alaska Fire Service, Galena Fire Management Zone in Fort Wainwright, Alaska. On September 9, 2011, Complainant's first line supervisor (S1) (no prior EEO activity) issued Complainant's 2011 EPAP with a rating of 3 or "Fully Successful", which Complainant refused to sign. Complainant and S1 understood that this rating was unofficial because Complainant had not worked the entire year, and that it only served to provide feedback on her performance.
On September 14, 2011, Complainant's attorney emailed S1 relaying information that Complainant wanted to have taken into consideration for her performance evaluation. On September 21, 2011, S1 responded to Complainant's attorney informing him that an employee is not entitled to a representative for discussions with their supervisors concerning work related discussions. As such, S1 stated that he would communicate with Complainant directly on work related matters.
On April 6, 2012, Complainant received an email from the eOPF system notifying her that three documents were recently uploaded. The third document is listed as her EPAP, with an effective date of September 30, 2011.
On October 22, 2012, Complainant met with her second line supervisor (S2) (no prior EEO activity), who issued her 2012 EPAP with a rating of 3.7, or "Superior." S2 stated that Complainant complained to him that S1 had improperly initiated her 2012 EPAP; wrote that she refused to sign it; and uploaded it onto her eOPF. S2 informed Complainant that when an employee refuses to sign his or her EPAP, a supervisor could annotate that accordingly. S2 stated that he informed Complainant that she could annotate her EPAP as well, and that she handwrote that she "didn't have input into the development of standards."
On November 20, 2012, Complainant initiated EEO counseling alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Vietnamese), sex (female), color (Brown), disability (post-traumatic stress disorder, anxiety, and depression), and reprisal for filing prior EEO complaints since 2010 when:
1. On October 19, 2012, she discovered that her unofficial 2011 EPAP was provided to Human Resources by S1 and uploaded into her eOPF, after being told by S1 that it would not be uploaded.
2. On October 19, 2012, she discovered that her 2012 EPAP was improperly initiated, and uploaded into her eOPF.
When S1 learned that Complainant's 2011 EPAP was uploaded by the EEO Counselor, he contacted a Supervisory Human Resources Specialist (SHRS) (unknown prior EEO activity). The SHRS immediately removed the 2011 EPAP, and confirmed to S1 that Complainant's 2011 EPAP was taken down on December 10, 2012.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
The Agency found that Complainant had not established a prima facie case of discrimination because she was not subject to any adverse action, and she had not shown that she was treated differently than similarly situated employees who were outside of her protected classes. The Agency assumed that she had established a prima facie case of discrimination based on race, sex, color, national origin, disability, and in reprisal for prior EEO activity, and found that management officials articulated legitimate, nondiscriminatory reasons for their actions.
With regards to claim 1, S1 stated that he was not aware that Complainant's 2011 EPAP had been uploaded onto the eOPF until he was contacted by the EEO Counselor for the instant complaint, and immediately notified the SHRS. The SHRS stated that she removed the EPAP, and attributed the incident to an inexperienced employee's mistake. For claim 2, S1 stated that he and Complainant did not discuss her 2012 performance standards because she wanted him to speak to her attorney, which he did not agree to. The Agency noted that Complainant did not rebut the managers' statements, and held that Complainant did not establish that the legitimate, nondiscriminatory reasons were pretext for discrimination. As such, it found that the Agency did not discriminate against Complainant on the bases of sex, race, color, national origin, disability, or in reprisal for prior EEO activity when it uploaded her 2011 EPAP; and when it improperly initiated and uploaded her 2012 EPAP.
Complainant filed the instant appeal, along with her brief in support of her appeal. On April 25, 2014, the Agency filed its opposition brief, asking that the Commission affirm its final decision.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency erred when it found that she was not discriminated against based on reprisal for prior EEO activity when her 2011 EPAP was uploaded; and when her 2012 EPAP was improperly initiated and uploaded. Additionally, Complainant argues that S1 discriminated against her on the basis of disability when he failed to provide her with a reasonable accommodation of allowing her to submit her comments regarding her 2012 performance standards through her attorney.
The Agency argues that claim 1 should be dismissed for being untimely because Complainant knew, or reasonably should have known, that her 2011 EPAP was uploaded after receiving the April 6, 2012 email. The Agency also asserts that claim 2 did not occur as alleged because Complainant's 2012 EPAP had not been uploaded at the time of the EEO investigation. In regards to Complainant's disability discrimination claim of failure to accommodate, the Agency argues that Complainant initially was denied an accommodation in July 2011, and restated her request in September 2011, which would make her claim untimely.
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
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). We note that on appeal, Complainant only argues that Agency erred when it found that she was not discriminated against based on reprisal for her prior EEO activity. As such, we will not address her contentions that the Agency discriminated against her on the bases of sex, race, national origin, color, and disability. Additionally, this decision will not address Complainant's claim that the Agency discriminated against her on the basis of disability when it failed to provide a reasonable accommodation because the Commission cannot address an issue raised for the first time on appeal.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
On appeal, Complainant argues that the uploading of her 2011 EPAP is an action that was reasonably likely to deter her from engaging in protected activity. Assuming, arguendo, that the action of uploading Complainant's 2011 EPAP was an example of adverse treatment by the Agency, and that she established a prima facie case of reprisal discrimination, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions.
The SHRS stated that Complainant's 2011 EPAP was uploaded inadvertently by an inexperienced junior employee who did not review the document prior to uploading it. Once S1 notified her of the mistake, she took action to remove the EPAP from Complainant's eOPF. While Complainant argues on appeal that S1 did not provide a reason for why he transmitted her unofficial 2011 EPAP to human resources, we note that Complainant stated that she had no rebuttal to the management officials, and did not request a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
For claim 2, we find that the action of Complainant's 2012 EPAP being uploaded onto her eOPF did not occur, as alleged. S2 stated that as of March 29, 2013, Complainant's EPAP had not been uploaded; and the SHRS stated that as of May 2, 2013, no employees' 2012 EPAP, including Complainant's, had been uploaded to the eOPF. Complainant has not shown any persuasive evidence to support her claim that her 2012 EPAP was uploaded onto her eOPF. As such, we find it unlikely that Complainant could have seen her 2012 EPAP on her eOPF on October 19, 2012. For Complainant's assertion that her 2012 EPAP was improperly initiated because S1 did not allow her to provide input for her performance standards, S1 stated that he attempted to discuss this with Complainant, but when contacted by Complainant's attorney, he informed them that employees and supervisors must communicate without attorneys about work related matters.
We find that Complainant has made bare assertions that S1 retaliated against her, which are insufficient to prove pretext or that his actions were discriminatory. Accordingly, we find that Complainant has not shown that the Agency discriminated against her on the basis of reprisal for prior EEO activity when on October 19, 2012, she learned that the Agency uploaded her unofficial 2011 EPAP; and initiated and uploaded her 2012 EPAP onto her eOPF.
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 that Complainant had not shown that the Agency discriminated against her when it uploaded her unofficial 2011 EPAP onto her eOPF; and when it improperly initiated and uploaded her 2012 EPAP onto her eOPF.
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
_8/10/16_________________
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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