0120170440
08-02-2018
Marleen G.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marleen G.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120170440
Agency No. RD201600313
DECISION
On November 3, 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 September 30, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether Complainant established that she was discriminated against when: (1) she was charged with being Absent Without Official Leave (AWOL) on several occasions; and (2) she was terminated during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mortgage Processor GS-1101-5 at the Agency's USDA, Centralized Services Center facility in St. Louis, Missouri. Complainant responsibilities included responding to telephone inquiries regarding the processing of mortgages. On February 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was charged with being Absent Without Official Leave (AWOL) on several occasions; and (2) she was terminated during her probationary period. Complainant also alleged that she was subjected to a hostile work environment.
M1 (female; Black) was Complainant's immediate Supervisor. She had been employed with the Agency since April 13, 1997. M2 (female; Caucasian) was Complainant's second level supervisor. She had been employed with the Agency since 1996, and became the second level supervisor in September 2015. M2 stated that she was aware of Complainant's sex and race. A1 (female; Black) was Complainant's "workflow" coordinator, and was aware of Complainant's sex and race.
Complainant was reported AWOL on four occasions. On September 2, 2015, she requested to extend her lunch to one (1) hour, but went over the allotted lunch hour by fifteen (15) minutes. Complainant stated that she planned to use the remaining leave time she had accumulated to cover the late return from lunch. M1 denied Complainant's request.
On July 17, 2015, Complainant started work at 9:00 a.m., and was scheduled to work until 5:00 p.m. She stated that she did not have a car and her ride was leaving at 4:45 p.m. Complainant informed A1 and requested to use the time that she had accrued to cover the time. A1 denied the request. She advised Complainant that she would have to use either personal time or some other type of time. Complainant stated that she "agreed" and left for the day. Upon her return the next day, she was advised by M1 that since she did not ask A1 for the time, she was not allowing Complainant to use that time and placed her on AWOL.
On August 18, 2015, Complainant felt ill, she left work and went to see her physician. She stated that she asked for the entire day off. Upon her return the next day, M1 requested a doctor's statement. Complainant provided M1 with a letter. M1 would not accept the letter because it was not on letterhead. Complainant secured another written statement from her physician, but M1 rejected that letter because it did not state the reason for Complainant's illness and why she was under the doctor's care. Complainant told M1 that the doctor advised her that due to doctor/patient confidentiality, he would not provide that information. M1 placed her on AWOL. Complainant contacted the union representative and stated she was told that "such a statement was unnecessary."
Lastly, M1 placed Complainant on AWOL for not taking her lunch at the designated time. At the time approaching her scheduled lunch time, Complainant stated that she was handling a call regarding mortgage processing when her lunch period was scheduled to begin. She stated that she completed the call and then left for her lunch. M1 placed her on AWOL because she did not adhere to her designated lunch time. M1 also disciplined Complainant for misconduct when she claimed that Complainant yelled at her.
M2 stated that employees are not placed on AWOL status because they go to lunch or go on break late. Instead, she emphasizes that an employee would be charged AWOL if they exceeded the total amount of time allotted for their lunch and breaks.
Complainant contends that her difficulties with M1 began when she requested telework. M1 denied the request because, according to Complainant, M1 felt that "their communication was off." Complainant stated that until she requested telework, M1 had been giving her accolades and praise about her work. She claims that M1 had expressed to her that she (Complainant) "reminded her of herself at an earlier age."
Complainant states that when she began the grievance process with the union, she was informed that several young Black females had filed grievances against M1. Complainant stated that many of the grievances remained open at the time she filed her EEO complaint. Complainant alleges that a similarly situated co-worker (White, male) requested leave on the same date as she, and while she was denied leave, his leave request was approved leave. Complainant claimed he requested leave after she had already been denied her request for leave.
Complainant also stated that she never received counseling, and prior to March 23, 2015, she was not aware that there was a policy regarding specific times for lunch. She denied ever exceeding her lunch allotted time; therefore, she believed that she should not have been placed in an AWOL status.
Complainant was verbally counseled by M1 regarding deficiencies in her job performance. M1 advised Appellant that successful completion of her probationary period was depended on her "acceptable attendance, conduct and performance." Subsequently, M1 determined that Complainant was not meeting the Agency's requirements. M1 prepared a Letter of Termination for Complainant. The letter was issued to Complainant on November 20, 2015, after M2 reviewed and approved the termination. According to the Agency, Complainant was not issued a letter of warning or a letter of reprimand prior to the issuance of the Letter of Termination, as neither a warning letter nor reprimand was necessary when the employee was on probation. M2 stated that the Complainant was provided an explanation for her termination in the letter.
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. 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 FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal Complainant submitted a copy of the Agency's FAD, but did not provide any additional arguments. The Agency submitted a brief arguing that its FAD is correct.
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").
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she 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 802 n.13. 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming for purposes of this decision that Complainant established prima facie cases of discrimination based on race, sex, and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons, as stated above, for placing Complainant on AWOL on several occasions and for subsequently removing her during her probationary period. We note that situations where she was placed on leave were not limited to extended lunch breaks. We further find that Complainant did not establish that her treatment was based on her protected categories. As noted by Complainant, her relationship with M1 changed when she requested telework. This does not indicate that discriminatory animus played a role. Likewise, the fact that other black women may have filed grievances against M1 does not establish that Complainant's race and sex were the reasons she was placed on AWOL or terminated. Finally, Complainant's assertion that a white male was approved for leave immediately after she was denied leave does not establish discriminatory treatment. Complainant failed to present evidence explaining the circumstances surrounding the granting of leave to the white male. Her simple averment is insufficient.
With respect to Complainant's termination, we also note that where, as here, a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Because we find no evidence of discriminatory animus here, we will not second-guess the Agency's decision.
Harassment
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 FAD.
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
__8/2/18________________
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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