0120140191
08-24-2016
Letty K.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Letty K.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 0120140191
Hearing No. 560-2012-00174X
Agency No. RDCF201000871
DECISION
On October 21, 2013, Complainant filed an appeal from the Agency's September 12, 2013, 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 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 the Agency discriminated against, and subjected Complainant to a hostile work environment based on race, age, and in reprisal for prior EEO activity by her supervisors.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources Specialist at the Agency's Rural Development facility in St. Louis, Missouri. On March 26, 2010, S1 (Caucasian, 54, prior EEO activity) became Complainant's first line supervisor. Complainant also reported to S2 (Caucasian, 51, no prior EEO activity), and S3 (African-American, 56, no prior EEO activity).
On December 13, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against, and subjected her to a hostile work environment on the bases of race (African-American), age (53), and in reprisal for filing a prior EEO case in 2006 when:
1. on January 12, 2010, she was not authorized to approve time, attendance, leave, or credit hours;
2. on March 25, 2010, she was humiliated and berated by S3, and other management officials during a meeting;
3. on March 29, 2010, she was denied training;
4. on March 29, 2010, her attendance at a Human Resources conference was cancelled by S1;
5. on March 31, 2010, she was berated and chastised by S1 during a meeting;
6. on March 31, 2010, she was excluded from an e-mail sent to members of the St. Louis management team;
7. on April 1, 2010, she was chastised by S1 in the presence of a Human Resources Specialist;
8. on April 5, 2010, she was subjected to false accusations during a one-on-one meeting with S1;
9. on April 12, 2010, she was harassed by S1 regarding her use of Family Friendly Sick Leave;
10. on April 21, 2010, she was denied compensatory time by S1;
11. on April 29, 2010, she was chastised for not being able to attend a meeting arranged by S1;
12. on April 30, 2010, she was subjected to negative comments and statements by S1 during a progress review;
13. on June 4, 2010, she was assigned a case that should have been assigned to another team;
14. on July 2, 2010, she was intimidated to respond favorably to Hotline Complaint questions about S1;
15. on July 28, 2010, S1 retaliated against her for responding honestly to the Hotline Complaint statement regarding a hostile work environment;
16. on September 14, 2010, she was instructed to perform employee relations duties, and responsibilities that had been previously reassigned to another staff member;
17. on September 15, 2010, she was chastised by S1in the presence of a coworker;
18. on September 21, 2010, she was berated by S1 prior to an EEO audio conference;
19. on September 28, 2010, she was rated as "Fully Successful" in Customer Service, resulting in an overall rating of "Superior" instead of "Outstanding";
20. on September 28, 2010, she was assigned work that was not required of other team leaders;
21. on or about October 4, 2010, she was again denied the opportunity to act as an Human Resources Officer (HRO);
22. on October 20, 2010, she learned her name had been removed from the list of individuals who receive labor relations information;
23. on November 15 and 16, 2010, she was berated for missing a deadline to submit changes to a Management Control Review Guide, and was assigned additional work to complete the project;
24. from January through November 2010, she was not allowed to act as an HRO;
25. on August 2, 2010, her employee relations duties and responsibilities were taken away and reassigned to another staff member;
26. on August 9, 2010, she was ordered to provide a doctor's statement regarding a request for two weeks' leave;
27. on August 9, 2010, she was moved from a supervisory office to an office designated for GS-13 specialist;
28. on August 2, 2010, her employee relations duties and responsibilities were taken away and reassigned to another staff member;
29. on August 31, 2010, she was harassed when she requested sick leave;
30. on January 14, 2011, S1 excluded her from a meeting but included a White Specialist;
31. on January 19, 2011, S3 scheduled meeting with all of his managers in St. Louis, and told S1 to exclude her from the January 25, 2011, meeting and send a Black male to the meeting;
32. on February 11, 2011, S1 demanded that she add an applicant to her selection list, and change her top three promotion eligible candidates;
33. on February 14, 2011, S1 changed work processes, made rude comments to her in the presence of her staff, about her note-taking and filing complaints in the presence of her coworkers; S1 yelled at her, and told her that she could not take verbatim notes; and when she entered S1's office, she berated her in a loud, irritated tone while the office door was left open, and accused her of trying to set her up;
34. on February 15, 2011, she submitted a training plan for her employees, and S1 asserted that she failed to complete it properly;
35. on March 9, 2011, S3 stopped her from acting on behalf of S1 during her 2-week absence;
36. on March 17, 2011, S1 made her provide information that she had provided to her before;
37. on an unspecified date, she requested basic Employee and/or Labor Relations training for her subordinate, and S1 chastised her;
38. on March 18, 2011, S1, S2 and the Chief of Human Resources, did not allow her to act on behalf of S1; and
39. on January 11, 2011, S1 chastised and accused her of providing less than quality service.
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).
On October 9, 2012, the Agency filed a Motion to Compel because Complainant had not responded to its discovery requests. The Agency counsel stated that Complainant's responses were due by September 27, 2012, and that he contacted Complainant's attorney in early October 2012, but had not received the requested information. The Agency filed a Supplemental Motion to Compel on October 26, 2012. On November 26, 2012, Complainant's attorney requested another discovery extension. Also on November 26, 2012, the AJ issued a discovery order, and denied Complainant's extension request. The AJ instructed Complainant to respond to the Agency's discovery requests within fifteen days, and informed her that failure to comply would result in a dismissal of the hearing request.
On December 20, 2012, the Agency filed a Motion to Dismiss because Complainant did not comply with the order. The AJ dismissed the hearing request on the grounds that Complainant failed to cooperate and prosecute her case when she did not comply with the Agency's discovery requests. The AJ remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that her managers subjected her to discrimination as alleged.
The Agency found that Complainant had not established a prima facie case of discrimination based on age because she had not shown that she was disadvantaged in favor of a younger person; and that she had established a prima facie case of discrimination based on race and reprisal for her prior EEO activity. The Agency then found that the management officials articulated legitimate, non-discriminatory reasons for their actions, and that Complainant had not shown that the reasons were pretext for discrimination. Accordingly, the Agency found that Complainant had not shown that the Agency discriminated against her on the bases of race, age, or in reprisal for prior EEO activity.
In regards to Complainant's allegation that she was subjected to a hostile work environment based on her race, age, and in reprisal for prior EEO activity, the Agency determined that the complained of actions did not rise to the level of conduct sufficient to reach the threshold of harassment. Accordingly, the Agency found that Complainant was not subject to a hostile work environment based on race, age or in reprisal.
Complainant filed the instant appeal, along with a brief and additional evidence, in support of her appeal. The Agency did not file an opposition brief.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that she and her attorney did not receive the Agency's discovery requests, and asks that her hearing request be reinstated. In the alternative, Complainant requests that the Commission consider new evidence that she submitted with her appeal. Complainant provided statements from those who would have testified at the hearing, and responses to the Agency's discovery request, which she alleges refutes much of the contents in the Agency's 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
The Commission notes that AJs have broad discretion in the conduct of hearings, including ordering parties to engage in discovery. See 29 C.F.R. � 109. Upon review of the record, we find that the AJ properly dismissed Complainant's hearing request when she did not provide responses to the Agency's discovery request. While Complainant alleges that she and her attorney never received copies of the Agency's discovery requests, the record shows that the Agency emailed her attorney on October 2, 2012, informing him that Complainant's responses to the Agency's discovery requests were past due. Complainant's attorney replied stating that he would like to schedule a teleconference to discuss the matter. Therefore, we find that Complainant's attorney was well aware of the need to respond to the Agency's discovery request.
When a complainant has not cooperated in the hearings process, absent a finding of contumacious conduct, the appropriate sanction is to dismiss the hearing request, and remand the complaint to the agency to issue a final agency decision on the record. See Byers v. Dep't of Homeland Sec., EEOC Appeal No. 0120082542 (Nov. 7, 2008); Bates v. Dep't of Veterans Affairs, EEOC Appeal No. 0120063654 (Nov. 30, 2007); Cole v. Dep't of the Navy, EEOC Appeal No. 01A42577 (Feb. 16, 2005). Accordingly, we find that the AJ appropriately dismissed Complainant's hearing request when she did not comply with the November 26, 2012 discovery order; and we deny her request to reinstate the hearing.
On appeal, Complainant has not specified any arguments regarding the findings in the Agency's final decision. Complainant also attempts to provide witness statements and responses to the Agency's discovery request, which she claims refute the findings in the Agency's final decision. However, the AJ dismissed Complainant's hearing request as a sanction for not responding to the Agency's discovery request, and ordered the Agency to issue a decision based on the evidence already contained in the record. Complainant may not circumvent the AJ's ruling by presenting this evidence on appeal.
Upon review of the record, we find that the Agency provided legitimate, non-discriminatory reasons for its actions, and Complainant has not shown evidence that the proffered reasons are pretext for discrimination. Additionally, in regards to Complainant's claims that she was subjected to harassment, we find that she has not shown that the alleged harassment was due to her protected bases, or that the complained of conduct was sufficiently severe or pervasive that it resulted in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). Accordingly, we find that the Agency did not discriminate against, or subject Complainant to harassment based on her race, age, or in reprisal for her prior EEO complaint.
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 has not shown that the Agency discriminated against, or subjected her to a hostile work environment based on race, age, or in reprisal for prior EEO activity.
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
_8/24/16_________________
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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