Maxie S.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Dec 13, 2016

0120142969 (E.E.O.C. Dec. 13, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Maxie S.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120142969

Agency No. OBD-2013-00423

DECISION

On August 26, 2014, Complainant filed an appeal from the Agency’s July 25, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at
the Agency’s Civil Rights Division in Washington, D.C. On May 28, 2013, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American) and in reprisal for prior protected EEO activity when:

1. Complainant was issued a letter of reprimand for dereliction of responsibility in
completing the Fiscal Year 2014 control number assignment;

2. Complainant was placed on leave restriction in effect until August 27, 2013;

3. Complainant’s leave requests were denied and she was charged with being absent
without leave (AWOL);

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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4. Complainant received a Notice of Proposed Suspension for Four Days for
unauthorized absence without leave, failure to follow instructions and lack of
candor;

5. Complainant was placed on a Performance Improvement Plan (PIP) to
demonstrate the required improvement in her performance;

6. Complainant received a Notice of Proposed Suspension for Five Days for
insubordination, disrespectful conduct toward her supervisor and failure to follow
instructions;

7. Complainant received a Notice of Proposed Removal from her Budget Analyst
position; and

8. Complainant was denied a within-grade increase.

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 (AJ). 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.

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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish 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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
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05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14,
1995).

Claim #1 (Letter of Reprimand)

Complainant received a Letter of Reprimand because of her failure to complete a job
assignment having to do with budget “control numbers.” Complainant had been repeatedly
warned about the importance of completing the job but failed to do so. This is a legitimate,
nondiscriminatory reason for the Agency action. Complainant admits not completing the
assignment but argues that she had insufficient information to complete it. ROI at 480.

Claim #2 (Leave Restriction)

The Agency explains that Complainant was placed on leave restriction because she failed to
report to work on a regular basis, resulting in unscheduled absences. The leave restrictions,
including requirements for submitting documentation to justify leave requests, were designed to
prevent unscheduled absences.

Claim #3 (Denied Leave and AWOL Charge)

Complainant’s requests for Family and Medical Leave Act (FMLA) leave were denied on three
occasions because she failed to supply necessary documentation. She did not report for work
during the periods for which she had requested leave. She was not paid for those periods and
was charged with absence without leave. Ultimately, after Complainant supplied the required
documentation, she was paid for the time in question and she was not charged with AWOL.
Complainant asserts that she supplied “supporting documentation” in advance for her leave
request. ROI at 482. Contemporary documentary record evidence shows that Complainant’s
supervisor had not received that documentation at the time he denied the leave request. ROI at
722-23.

Claim #4 (Four Day Suspension for Unauthorized Absence)

According to the Agency, Complainant was absent from her place of work from 11:30 a.m. to
4:15 p.m. on March 7, 2013. When her supervisor asked where she had been during that
period, Complainant denied that she had been absent from the workplace. Computerized
building access records showed that Complainant had actually been away from her workplace
and outside her building for most of the period in question. As a result, the Agency suspended
Complainant for four days. Complainant does not dispute that these incidents occurred and
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admits not answering “candidly” about her whereabouts during the period in question. ROI at
486, 762.

Claim #5 (Performance Improvement Plan)

The Agency’s reason for placing Complainant on a Performance Improvement Plan (PIP) was
that she had demonstrated difficulty in completing her assignments in a timely manner. ROI at
510. Complainant acknowledges that prior to being placed on the PIP, her performance was in
a “downward spiral.” ROI at 487.

Claim #6 (Five Day Suspension for Insubordination, Disrespectful Conduct and Failure to
Follow Instructions)

The Agency explains that Complainant received a Notice of Proposed Suspension based on
three charges: first, that she was insubordinate when she refused to attend her mid-year
performance review meeting, in contravention of her supervisor’s instructions; second, that she
was disrespectful to her supervisor when she refused to allow him to enter her office and in
other ways; and third, that she failed to follow her supervisor’s instructions to submit revisions
to a budget document by a specified date. Complainant does not dispute that these incidents
occurred. ROI at 489.

Claim #7 (Notice of Proposed Removal)

Complainant was proposed for removal because of her repeated failure to timely complete
assignments. Complainant was placed on a Performance Improvement Plan that listed 11
assignments to be completed by specified dates. According to the Agency, Complainant
completed less than half of these assignments in a timely manner. Complainant does not
dispute that these incidents occurred. ROI at 491.

Claim #8 (Within Grade Increase Denied)

On June 4, 2013, Complainant was denied a Within Grade Increase (WIGI) to a GS-11, Step 3.
The Agency explained that the WIGI was denied because she had been rated “unacceptable” in
three critical elements and had been proposed for removal. Complainant does not dispute that
the WIGI was denied because of her performance.

The Agency’s explanation for its actions with respect to each of the claims set forth above is
legitimate and nondiscriminatory. Complainant disputes some aspects of the explanations but
none of her disagreements is material or sufficiently specific to support the conclusion that the
Agency’s reason is a pretext designed to conceal discriminatory animus. Complainant does not
offer any persuasive evidence which would demonstrate that the Agency’s actions were in any
way linked to her claimed protected bases. Mere assertions of discriminatory animus, without
documentation or testimony in support thereof, are insufficient to demonstrate that
discrimination occurred.
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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.

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
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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

December 13, 2016
Date