0120140249
06-01-2016
Pamala L.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Pamala L.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120140249
Agency No. CRSD201200700
DECISION
On October 16, 2013, Complainant filed an appeal from the Agency's September 17, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found the Complainant was not subjected to discrimination based on her sex (female) and race (African American) when she discovered, upon returning from sick leave on April 30, 2012, that half of her duties had been taken away and disseminated between two other members of the department of the opposite sex and of another race.
BACKGROUND
Complainant worked as an Information Technology Specialist, GS-12, for the Infrastructure Operations Division (IOD), Office of the Chief Information Officer (OCIO), Communications Operations Branch (COB) in Kansas City, Missouri. The following facts are set forth in the Agency's Final Decision (FAD): Complainant was on sick leave between April 1 and April 30, 2012. Complainant stated that her first line supervisor (S1), the Section Branch Chief, sent her an email about reassigning her duties while she was on sick leave, but she did not read it until returning to work. Prior to the reassignment, Complainant was responsible for ordering internet and main telephone services for 7 large offices and approximately 35 states offices within the Agency. Complainant argued that the two new hires to whom S1 reassigned more than half her duties, were not equipped to handle the responsibilities. Complainant told S1 that the reassignment of her duties was unfair. She states that S1's only justification for the reassignment was that customers in the field were confused about assignments. Complainant subsequently requested a desk audit for her position as she did not agree that her remaining duties were really part of her position. Complainant contested the inclusion of journeyman duties in her position description because she maintained that she did not perform the same duties as a journeyman. Complainant also maintained that she never received a response from S1 on her request for a desk audit.
S1 testifies that he realigned Complainant's workload with the entire Branch's workload because of the retirement of three staff members in early November and the last day of December. S1 further explains that Complainant was responsible for approximately three-fourths of the area's entire workload, and that realigning her duties was a direct response to this fact. Only one of the new hires performed the same duties as Complainant, while the other two new hires received specific duties that were previously being performed by the retirees. Additionally, S1 rebuts Complainant's contention that he was not responsive to her request for a desk audit. He contends that he sent the request to his supervisors and made a few follow up inquiries after not receiving a response from them. With respect to the position description, S1 contends that the journeyman duties contained in the position description he sent Complainant adequately described her role. While the title of D-DAR made her position slightly distinct in role and authority, all of these distinctions were outlined in the position description that was sent to her.
Complainant's second line supervisor (S2), the Division Director of IOD, asserts that she was aware of the reassignment of the Branch duties because of new hires but was not aware of their specific allocations. She states that all employees within the Branch absorbed additional duties after the retirements of 2011, and that the redistribution of the workloads resulted from three new hires and Branch shifts.
On July 2, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of "Issues Presented" above. 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). In accordance with Complainant's request, 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.
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
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and race, we find that the Agency articulated legitimate, non-discriminatory reasons for reassigning some of Complainant's duties to two other employees. As articulated in the "background" section above, S1 testifies that he realigned Complainant's workload with the entire Branch's workload because of the retirement of three staff members in early November and the last day of December, and that realigning her duties was a direct response to the fact that Complainant was responsible for approximately three-fourths of the area's entire workload. We find that Complainant failed to establish pretext or discriminatory animus with respect to the Agency's legitimate non-discriminatory reasons with respect to the realignment of her duties, or that any of the Agency's actions in the instant matter were rooted in discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate she was subjected to discrimination based on her sex and race when she discovered, upon returning from sick leave on April 30, 2012, that half of her duties had been taken away and disseminated between two other members of the department of the opposite sex and of another race.
Therefore, the Agency's FAD is AFFIRMED.
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
_6/1/16_________________
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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