0120102492
10-20-2011
Pamela D. McKinney, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Pamela D. McKinney,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120102492
Hearing No. 440-2008-00193X
Agency No. HS-07-FEMA-002651
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s April 20, 2010 final order 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
order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Disaster Recovery and Operations Specialist in the Agency’s Region
V Response and Recovery Division in Chicago, Illinois. In January
2007, Complainant began experiencing problems in the workplace.
In January 2007, Complainant expressed to her supervisor (S1) her
interest in learning more about certain Agency systems. S1 agreed to
provide Complainant training and to permit her to serve as a backup to
a co-worker to gain experience in data coordination. When Complainant
expressed displeasure about having to back up a GS-7 employee rather than
a GS-12 employee, S1 cancelled the training and her backup assignment.
In February 2007, S1 sent Complainant and three other co-workers to
Peoria, Illinois for on-the-job training. Complainant reported to
the Peoria Joint Field Office to begin her training on February 12,
2007, but two days later, Complainant met with the Peoria coordinating
officer and informed him that she wanted to leave the training program.
She told him that she did not feel comfortable with a former co-worker
being present who had spread rumors about her being rude to hotel
employees. In addition, Complainant objected to the assigned Field
Supervisor/Training Mentor sitting in on her training sessions and
commenting on the instruction. She complained that having a second
person training her was confusing. As a result, Complainant left the
training early.
On February 20, 2007, Complainant contacted an EEO counselor to raise
claims of discrimination regarding various Agency officials. On February
23, 2007, S1 met with Complainant to find out why she failed to finish
her Peoria training. Complainant raised some generalized concerns about
discrimination and questions about her pay grade. S1 then escorted
Complainant to Complainant’s second-level supervisor’s (S2) office
to discuss her concerns in more detail. S2 told Complainant to bring
her workplace concerns to S1 so that he could make an attempt to resolve
whatever problems she had at the lowest level possible. There was no
discussion of Complainant’s EEO complaint. S1 believed that issuing
Complainant a counseling memorandum regarding her failure to complete
the two-week training was warranted, but decided against issuing one.
On March 18, 2007, Complainant’s team leader (TL) held a team meeting.
Complainant was out of the office on that day so TL met with Complainant
at her cubicle the following day to go over the materials and information
she had covered with the other team members. TL explained various
administrative matters and protocols and how the team would operate.
In addition, TL explained the temporary nature of the Cadre of On-Call
Response Employees (CORE) positions and suggested that Complainant use
this time to gain a permanent position with the Agency. Further, TL
instructed Complainant to refrain from contacting management officials at
home if her questions could wait until the following day. Complainant
perceived TL’s remarks to have been retaliatory and harassing and
contacted the EEO Counselor. Complainant’s version of events was
that TL verbally threatened her, warned her not to make any waves,
told her that management could get rid of her position at any time,
and informed her that she would be closely monitored.
On March 20, 2007, Complainant again emailed the EEO Counselor
summarizing what she believed to have taken place during her meeting
with TL and stated that she called her attorney to report what had
happened. She also forwarded this email to the Employee and Labor
Relations Specialist (ELRS) and advised that she was being subjected to
a “modern day lynching” and asked “What are the ramifications if
I spoke with the media regarding these issues?” ELRS responded that
she was entitled to contact the media if she wished, but her inquiry
caused a few people to question her judgment. In addition, Complainant
confronted her former supervisor and accused him of complaining to
TL about her calling him at home. The former supervisor was upset by
this conversation, and TL said that she would talk to Complainant to
clarify her prior instruction. TL was perplexed and irritated with
Complainant’s actions as Complainant’s former supervisor was not
even part of her current management team.
TL went to Complainant’s cubicle to speak to her about the incident
with her former supervisor. A co-worker overhead TL telling Complainant
that she could not call her former supervisor at home. After the
conversation, Complainant reported to the Federal Protective Service that
TL had verbally abused her and that she felt threatened. Two inspectors
from the Federal Protective Service came to the office to investigate
the complaint. After speaking with Complainant, the inspectors told her
that the matter was not a police issue. Nonetheless, Complainant emailed
a Federal Protective Service officer and again reported that TL had
screamed at her in front of her co-workers and that she felt threatened.
S1 learned that Complainant had called the Federal Protective Service over
the incident with TL and spoke with both Complainant and TL. S1 told
Complainant that he wanted to meet with her and TL together to work out
their differences. In response, Complainant contacted her attorney,
the EEO Counselor, and ELRS and requested that a neutral party be present
at any meeting with S1. In addition, Complainant’s attorney called S1
and demanded that he be present at any meeting held with the Complainant.
At this point, S1 seriously questioned Complainant’s judgment and her
ability to work with management. S1 called ELRS for advice on what
steps to take to address the situation. When he fully described the
situation for ELRS, she recommended that Complainant be terminated.
On March 27, 2007, S1 offered Complainant the choice of resigning or
being terminated. When Complainant refused to resign, S1 terminated her
for conduct unbecoming of a federal employee. S1 cited Complainant’s
choice of unacceptable methods for resolving issues with her colleagues
and her failure to follow the proper chain of command and procedures
for addressing such matters. In addition, S1 believed that Complainant
unnecessarily escalated a workplace disagreement with TL by contacting
her attorney, the Federal Protective Service, and ELRS, and threatening to
call the media. Further, S1 reasoned that Complainant was insubordinate
to TL when she refused to discuss a work-related issue and walked away
from her. Finally, S1 added that Complainant made matters worse by
falsely accusing TL of misconduct.
On March 28, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her in reprisal for prior protected EEO
activity when, on March 27, 2007, S1 terminated her employment.
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 EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ held a hearing on March
18 and 19, 2010, and issued a bench decision on March 29, 2010.1
In the decision, the AJ determined that Complainant had established
a prima facie case of reprisal discrimination and that the Agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, Complainant was terminated because she had a distorted view
of the circumstances surrounding her employment and what other employees
did and said. Based upon the record, the AJ agreed with the Agency that
Complainant was an onerous employee who refused to work with management
to resolve workplace conflicts. Complainant went too far in falsely
accusing TL of misconduct and then escalated the situation unnecessarily
by involving the federal police and her attorney. Having observed
his demeanor and manner of testifying at the hearing, the AJ concluded
that S1’s testimony as to why he terminated Complainant was credible.
The AJ found that the Agency was reasonable in perceiving that Complainant
had behaved inappropriately and that she was not suitable for federal
employment.
As to Complainant’s arguments that the Agency’s reasons were
pretextual, the AJ determined that Complainant’s testimony was not
credible. The AJ concluded that the facts in this case revealed that
Complainant’s termination was triggered by her unreasonableness and
her poor interpersonal skills towards conflict resolution. As a result,
the AJ held that Complainant had not been retaliated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that AJ erroneously found the Agency’s
witnesses were credible. Further, Complainant contends that the AJ
erred in finding that she overreacted by demanding that her attorney be
present for any meeting with Agency management. In addition, Complainant
maintains that it was appropriate for her to call the Federal Protective
Service officers because she felt threatened by TL. Complainant notes
that if it was appropriate for the Agency to call building security to
escort her out of the building after her termination, it was certainly
not grounds for termination when she called building security to assist
her when she felt threatened. Accordingly, Complainant requests that
the Commission reverse the final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment/Reprisal
To prevail in a disparate treatment claims 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
in this case, however, since 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. 05950842 (Nov. 23, 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, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon a review of the record, the Commission finds that the AJ’s finding
of no reprisal is supported by substantial evidence. The Commission
concurs with the AJ’s finding that the Agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions, as set forth
above. Specifically, Complainant was terminated for conduct unbecoming
of a federal employee including unnecessarily escalating a workplace
disagreement, disrupting the office, and insubordination. Further,
the record supports the AJ's determination that Complainant was less
credible than the Agency witnesses who testified at the hearing.
As the AJ pointed out, S1 was straightforward in testifying on the
reasons why he terminated Complainant, answered questions from both
parties sincerely, and his demeanor never changed. In addition, the
AJ found Complainant’s testimony not credible, specifically as to
the March 20, 2007 incident, as her version of events was undermined
by other witness testimony. Accordingly, the Commission’s review of
the record reveals that Complainant did not persuasively challenge the
veracity of the Agency witnesses.
The Commission finds that the AJ's findings based on credibility
determinations that no reprisal discrimination occurred are supported
by substantial evidence. The Commission concludes that Complainant
failed to meet her burden to prove, by a preponderance of the evidence,
that the Agency's actions were retaliatory. Accordingly, the Commission
discerns no basis to disturb the AJ’s decision.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final order
because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 20, 2011
Date
1 Complainant originally alleged additional claims and bases of
discrimination in her complaint; however, the AJ issued a decision
without a hearing finding no discrimination as to those matters.
On appeal, Complainant only challenges the AJ’s post hearing finding
that her termination was not based on her prior protected EEO activity.
At no point in her appeal does Complainant raise any objections to the
AJ’s partial decision without a hearing. Accordingly, the Commission
exercises its discretion to review only those issues directly raised
on appeal. See Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 9-10 (Nov. 9, 1999).
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0120102492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120102492