0520180162
05-10-2018
Lela M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lela M.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Request No. 0520180162
Appeal No. 0120152866
Hearing No. 471-2014-00008X
Agency No. FS-2012-00074
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120152866 (November 9, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
The decision in EEOC Appeal No. 0120152866 dismissed Complainant's appeal as untimely filed. After reconsidering the previous decision and the entire record, the Commission finds that its previous decision erred in dismissing Complainant's appeal and now VACATES that decision. As such, the Commission will now consider the merits of Complainant's appeal for the first time.
BACKGROUND
Effective April 23, 2011, Complainant worked as a National Resource Specialist - South Zone at the Ottawa National Forest, Bessemer Ranger District in Ironwood, Michigan.2 Complainant reported to the Recreation Program Manager (S1). In August or September 2011, the District Manager of the Ontonagan District (S2) became Complainant's second level supervisor, and sometime between Fall 2011 and January 2012, became her immediate supervisor. In June 2011, a new Ottawa Forest Supervisor (S3) became Complainant's third level supervisor. There was a Bessemer District Ranger (S4) who had responsibility and jurisdiction for activities within the applicable geographic area, however, she did not supervise Complainant.
On February 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (disabling migraines and Major Depressive Disorder), and reprisal for prior protected EEO activity (2010 EEO pre-complaint regarding request for reasonable accommodation) when:
1. on August 22, 2011, the Agency denied her request for reimbursement of transfer of station (TOS) costs that it had promised her beforehand,
2. on September 2, 2011, S1 initiated a leave audit on Complainant without her knowledge or consent, and denied her request to rescind the audit,
3. on or about September 11, 2011, S1 failed to give Complainant "Exceeds" on any of her five performance elements, and advised her that she had a negative attitude,
4. on October 13, 2011, she received an email from S1 effectively cancelling her "special use permit and lift inspection training," which had been offered to her for free,
5. on various dates, the Agency denied her requests for leave,
6. on April 24, 2011 and October 13, 2011, the Agency denied her requests for "special use" training,
7. on unspecified dates, S1 denied her request for a laptop,
8. the Agency subjected her to hostile work environment harassment when:
(a) after Complainant returned from a leave of absence, S1 stated that he would have replaced her if she had not returned by a certain date,
(b) on September 9, 2011, S1 yelled at her over the telephone when she requested a day off using credit hours she had earned the preceding weekend,
(c) on October 12, 2011, S1 questioned her about the accuracy of her time sheets, accused her of fabricating her leave, and became irate when she stated she was tired of being bullied,
(d) on November 2011, S1 threatened to charge her with absence without official leave (AWOL) if she did not request advance leave,
(e) on an unspecified date, after she objected to revising performance elements for her subordinates, S1 threatened her to "re-do them or else," and
(f) on an unspecified date, she was required to check in and out of the office with two managers although other staff were not.
On September 10, 2012, the Agency issued a final decision dismissing Complainant's complaint for filing formal in an untimely manner. Complainant filed an appeal of the dismissal with this Commission. The Commission reversed the dismissal and remanded the complaint to the Agency for further processing. The Agency completed an investigation of Complainant's complaint, and then informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing.
Hearing
During the hearing, Complainant stated that migraine headaches cause her temporary blindness, stuttering, and difficulty concentrating, and each episode lasts about three days. She stated that Major Depressive Disorder affects her sleep patterns (with insomnia or excessive sleep), and causes her lack of energy, clouded thinking, difficulty speaking, crying spells, and suicidal thoughts. Complainant also stated that she has nightmares about harassment at work. Complainant stated that she lost her brother to suicide about a month after she started her job at Ottawa National Forest. She stated that she started improving and performing well, but the Agency's harassment worsened her depression. Complainant stated that she told her immediate supervisor, S1 (male) about her depression and, in June, told him that she was "barely hanging on." Complainant stated that she informed S1's new supervisor, S2, (female) when she came on board. Complainant stated that she asked S2 and the Forest Manager, S3, for assistance because S1 continued to harass her. Complainant testified that S3 continuously stated, "[S1] is a nice guy" in response to her allegations.
Regarding claim (1), Complainant stated S1 told her that he had full TOS for her transfer and it impacted her decision to accept the position. Complainant stated that she provided receipts for $6,000 in TOS for transferring her household goods, etc. Complainant stated that S3 told her that she accepted the position "as is" and he was instructed not to provide TOS because of the precedence it would set. The North Zone National Resource Specialist (C1) (male, no disability, no prior EEO activity) stated that he was a competitive hire into his position in 2002 and he received TOS. S1 stated that Complainant did not receive the position under competition as C1 did. S1 stated that he asked Human Resources (HR) about TOS, and HR stated that TOS was not appropriate due to the circumstances. S1 stated that S3 explained to Complainant that the Agency would not pay TOS in her situation because it would set wrong precedent. S4 stated the Agency reassigned Complainant to Ottawa as an accommodation for an allergy to some form of vegetation at her prior location in Colorado. S3 stated that Agency Reasonable Accommodation Staff informed him that it was not typical for the Agency to provide TOS for a transfer due to accommodation.
For claim (2), Complainant stated that HR contacted her to let her know S1 initiated a leave audit on her. She stated that she asked S1 the reason for the request and to rescind it. S1 stated that he asked for a leave audit because he could not track Complainant's time and attendance, and her carry-over numbers were constantly changing. S1 stated that Complainant constantly requested time off and he was concerned that she would plan to use leave she did not have. S1 stated that he does not view a leave audit as punitive. He stated that HR informed him that employee permission was required to conduct an audit. S1 stated that Complainant ended up in the leave donation program.
As to claim (3), Complainant stated that S1 added performance elements to her appraisal for Fiscal Year 2012 - "be professional and respectful toward employees, including supervisors" and "maintain a positive attitude." Complainant stated that she has never seen such performance elements and no one previously told her she had a poor attitude. S1 stated that Complainant had a poor attitude whenever the two of them met. He also stated that Complainant would complain about the quantity of work she had to perform.
Regarding claims (4) and (6), Complainant stated that she handled permit administration in a previous position back in 2002 so she requested training to refresh her skills. Complainant stated that she found free training for ski permits and inspection, but management rescinded that training request. The District Manager for Ottawa, S4, stated that she communicated with the prospective trainer and determined that the distance (New England to Michigan) was too far to travel based on the size of the permit (minimal complexity and only 20,000 acres). Further, S4 stated the only structures on National Forest land are non-lift towers, which have very modest improvements and very minimal risks. S4 stated that the Agency could accommodate any requested training on-site and utilize the vendor for follow-up questions. S4 stated that Complainant's oversight of the ski area was minimal and only one of a variety of duties.
For claim (5), Complainant stated that she was approved for the Family and Medical Leave Act (FMLA) program and Voluntary Leave Transfer Program. She stated that she requested advanced annual leave and advanced sick leave but there were occasions that management denied her request. S3 stated that he sought to review trends in Complainant's leave balances because a criterion for advanced leave is an employee's ability to repay the leave. S3 stated that he granted an initial 32 hours of advance leave for Complainant to allow him time to better understand policy requirements and Complainant's needs. S3 stated that he denied Complainant's request for additional advance leave because she was accepted into the leave donation program and he wanted her to exhaust that leave first.
Regarding claim (7), Complainant stated that she asked S1 for a laptop several times, and he declined her request stating she could have one when her computer was due for replacement (approximately two years). Complainant stated that her counterpart in another office had a laptop and it was convenient when attending meetings in the field. Complainant stated that she asked S2 for a laptop and, in February 2012, received an extra laptop from Information Technology (IT). Complainant's colleague, C1, stated that he originally had a desktop when he accepted the National Resource Specialist position in 2002, but in 2006 or 2007, the Agency gave him a laptop for work as part of a scheduled replacement. C1 stated that the laptop allowed him to be more mobile. S1 stated facility policy is that you can get a new laptop when your computer is due for replacement.
Regarding claim (8) (hostile work environment), Complainant stated, when she was scheduled to return to work from leave following her brother's passing, S1 told her he would have to replace her if she did not show up for work on Monday. S1 stated that he did not threaten to fire or replace Complainant.
Also, Complainant stated that everyone had to sign in and out on the board, but she had to also email or call S2 and S4 when she arrived and departed from the facility. Complainant stated this practice began in January 2012. C1 stated that it was standard practice to inform management when you are departing and will return to the facility, using an electronic database. S4 stated that when Complainant began to have an irregular schedule, she asked her to inform her when she was in or leaving the office. S4 stated that she asked to be informed for emergency purposes.
AJ Decision
On June 8, 2015, following the hearing, the assigned AJ issued a decision finding no discrimination. Generally, the AJ found Complainant's testimony less credible than the managers', and that her claims were primarily bare assertions of discrimination. The AJ found that S1 was not aware of Complainant's diagnosis but just knew that her doctor recommended she be absent from work. The AJ found that S1 was not aware of Complainant's migraines until he received the instant formal complaint. Also, the AJ found that Ottawa management was not aware of Complainant's prior EEO activity.
For claim (1), the AJ found that Complainant was not told for certain that she would receive TOS costs and her transfer offer letter clearly stated that the Agency was not obligated to pay relocation costs. The circumstance in which TOS was paid was with competitive hiring and not with reasonable accommodation transfers. Regarding (2), the AJ stated the record showed that Complainant's leave balances were confusing because she received leave donations at her Colorado location, and that S1 inquired about the confusion. The result was that, when an employee is in the leave donation program, it takes time for the donations to catch up with their time and attendance balances. As to (3), the AJ concluded that Complainant speculated as to the reason for her performance rating, and did not have a real indication that discriminatory factors were the motive. Further, the AJ found that S1 added elements to Complainant's performance evaluation based on her past behavior. The AJ credited testimony of S2 that she witnessed Complainant be "disrespectful" to S1 and counseled her on her behavior.
As to claims (4) and (6), the AJ concluded that Complainant's responsibilities for ski lift were to administer the permit and ensure inspections were conducted. The AJ found that Complainant did not conduct the inspections so her tasks did not require the training she requested. Regarding (5), the AJ found Management approved 32 hours of advance leave but did not approve more for concern that Complainant would not be able to pay it back. Also, management stated that Complainant was approved for the leave donation program and should exhaust those donations before owing additional leave. Regarding (7), the AJ found that Complainant requested a laptop as a convenience, but not as an accommodation. The AJ stated that laptops were provided when computer replacement was due. The AJ noted that Complainant's new supervisor, S2, made an exception and gave Complainant an extra IT laptop about seven months after her initial request.
Regarding harassment, the AJ did not credit Complainant's testimony that when she complained to S3 about S1, he simply reiterated that S1 is "a nice guy." The AJ found that S3 felt that Complainant and S1 were two employees who had difficulty working together and that alternative dispute resolution would be helpful. Later, S3 changed Complainant's immediate supervision to S2. The AJ noted that Complainant's Psychologist testified that work and her brother's suicide were stressors for Complainant. The AJ stated that Complainant also reported a history of depression due to various stressors throughout her life. The AJ stated that the Psychologist reported "hypersensitivity" and "hypervigilance" in Complainant's interactions with others. Further, the AJ noted that the Psychologist supported Complainant's application for disability retirement.
Summarily, the AJ found that Complainant failed to show that the Agency's actions independently or together were based on discriminatory motives. The Agency did not issue a final decision.
Post-Hearing Stage
Complainant filed an appeal of the AJ decision3 with this Commission, which was docketed as EEOC Appeal No. 0120152866. In Appeal No. 0120152866, the Commission dismissed Complainant's complaint for untimely appeal, which we now determine was is error and vacate.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R. � 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, at � VI.B. (Aug. 5, 2015).
Hostile Work Environment & Disparate Treatment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find substantial evidence supports the AJ's determination that the Agency did not discriminate against Complainant on the bases of sex, disability, or reprisal for prior protected EEO activity with respect to the matters alleged. A finding of harassment is precluded by our determination that Complainant failed to establish that the actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Further, to the extent that Complainant alleged disparate treatment, even if we assume that Complainant established a prima facie case of discrimination, the record shows that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the matters at issue as detailed earlier in this decision. We find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
CONCLUSION
After reconsidering the previous decision and the entire record, the decision in EEOC Appeal No. 0120152866 (the procedural dismissal) is vacated. Notwithstanding, on the merits, we AFFIRM the final agency action finding no discrimination. As this is the first time we have considered the merits of Complainant's appeal from the AJ's decision, we have provided appropriate appeal rights below.
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
May 10, 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.
2 Initially, Complainant worked at an Agency facility in Colorado, but she was allergic to vegetation at that location and needed reassignment. Complainant was placed at the Ottawa National Forest through the Agency's Reasonable Accommodation Program. Subsequently, in December 2012, Complainant accepted disability retirement.
3 We note, pursuant to 29 C.F.R. � 1614.109(i), where an agency does not issue a final order within 40 days of receipt of the AJ's decision in accordance with � 1614.110, the decision of the AJ becomes the agency's final action.
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