0120180348
03-27-2018
Michelle G.,1 Complainant, v. Scott Pruitt, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michelle G.,1
Complainant,
v.
Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120180348
Agency No. 20160048HQ
DECISION
On November 7, 2017, 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 29, 2017 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at an Agency facility in Research Triangle Park, North Carolina. The Agency removed Complainant from employment effective October 18, 2015, citing "medical inability to perform the functions of your position."
On March 16, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (Major Recurrent Depression, Anxiety, Emotional Shock, and Melanoma) when:
1. between April 2015 and December 20, 2015, the Agency's Office of Human Resources (HR) obstructed Complainant's Minimum Retirement Age Plus Ten (MRA+10) retirement and her disability retirement, and
2. in April 2015, Complainant learned that an Agency Office of General Counsel (OGC) Attorney, who was representing the Agency in Complainant's appeal before the Merit Systems Protection Board (MSPB), had a copy of Complainant's counselor's report from a prior EEO matter.
The Agency accepted both claims for investigation.
Investigation
Complainant's Statement
During the EEO investigation, regarding claim (1), Complainant stated that HR knew that her supervision was aware of her medical conditions and inability to return to the workplace, but did nothing to assist her. Further, Complainant stated that HR informed her of the wrong dates for her retirement eligibility and was grossly incompetent. As to claim (2), Complainant stated that the Agency OGC Attorney conspired with management to remove her from employment.
Agency Response
An Agency Human Resources Specialist (HR1) stated, in October 2015, Complainant submitted her first application for retirement. HR1 stated she was unable to process the application because Complainant was "ineligible," as she would not reach the minimum retirement age until November 2015. HR1 stated that she learned that the Agency removed Complainant in October 2015, and she knew the only way Complainant could retain her health insurance was to apply for disability retirement. HR1 stated, on November 11, 2015, Complainant submitted her application for disability retirement to HR, and HR processed the application package and sent it to the Office of Personnel Management (OPM) on December 22, 2015. (HR1 noted that the supervisor's portion of the application was submitted to her on December 16, 2015.) HR1 stated that she was not aware of Complainant's medical condition because the documents she submitted for disability retirement were sealed. HR1 stated that it usually takes OPM six months to finalize its review for disability retirement.
An OGC Attorney Advisor (AA1) stated that she does not have an organizational relationship with Complainant and does not know her. AA1 stated that she served as Agency Representative for a March 30, 2015 appeal Complainant filed with the MSPB. AA1 stated, while performing her duties as Agency Legal Counsel regarding Complainant's claims, she reviewed a copy of an EEO Counselor's Report that was part of a complaint record prepared by the Agency. She stated that she considers this action "protected under the Attorney-Client and Attorney Work Product Privileges."
Investigative Record
The record contains an MSPB appeal form, dated March 30, 2015, regarding absence without leave and denial of pay for leave bank and leave donations, since November 2014 (under a new supervisor). It also contains an EEO Counselor's Report, dated December 18, 2015, regarding denial of advanced sick leave and removal from employment. Further, the record contains a letter dated May 16, 2016, wherein OPM informed HR that it approved Complainant's disability retirement application. The record contains a Supervisory Statement for Complainant's Retirement Application stating that Complainant did not report to work November 3, 2014 to October 18, 2015 - utilizing 884 hours of leave without pay, 400 hours from leave bank, 12 hours from Voluntary Leave Transfer Program, and 680 hours of Absent without leave. (The Supervisor stated there was no reasonable expectation that Complainant would return to duty.) The record also contains copies of emails regarding leave usage and retirement forms between Complainant, HR, Complainant's supervisory chain, and OPM.
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the latter. On September 29, 2017, the Agency issued a decision dismissing (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Notwithstanding, the Agency also reviewed the claims on the merits and concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed.
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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the adverse action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability, the Agency articulated legitimate, nondiscriminatory reasons for the actions at issue. The Agency stated that it informed Complainant that she was "ineligible" for general retirement because she had not reached the minimum retirement age, but that disability retirement was a viable option. The Agency stated that Complainant submitted her application to Human Resources on November 11, 2015 and HR submitted the application package to reviewing agency, OPM, on December 22, 2015. Management stated that OPM usually takes six months to review applications. The record shows that OPM informed the Agency that it approved Complainant's disability retirement in May 2016. We find, if there was a delay in processing complainant's retirement paperwork, Complainant failed to show the delay was due to a protected basis.
Further, an OGC Attorney Advisor, AA1, stated that she served as Agency Representative for a March 30, 2015 MSPB appeal filed by Complainant. AA1 stated that, in performing her duties as Agency legal representative, she reviewed an EEO Counselor's Report for Complainant. Also, the record shows that Complainant was absent from work since November 2014 and used a substantial amount of various types of leave during that time, and that Complainant filed her MSPB appeal regarding leave approval since November 2014. Further, the December 2015 Counselor's Report pertained to denial of leave on November 2014 and, ultimately, removal from employment. We find Complainant failed to show the Agency Representative improperly utilized the Report in performance of her duties as Agency Representative or that said use was motivated by discriminatory factors.
Summarily, we find that Complainant failed to show, by a preponderance of the evidence, the articulated reasons are a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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
March 27, 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.
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