[Redacted], Callie B.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

Appeal No. 2019002018 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Callie B.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor, Agency. Appeal No. 2019002018 Hearing Nos. 480-2012-00701X; 480-2013-00585X; 480-2016-00032X Agency Nos. DOL 11-09-107; DOL 13-09-027; DOL 15-09-038 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 7, 2018 final order concerning equal employment opportunity (EEO) complaints 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. The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion and consolidates the above-captioned cases. At the time of events giving rise to these complaints, Complainant was employed by the Agency as a Wage Hour Investigator, GS-1849-12, in the Agency’s Los Angeles District Office in Los Angeles, California. On July 26, 2011, Complainant filed an EEO complaint (Agency No. DOL 11-09-107) wherein she claimed that she had been discriminated against by the Agency on the bases of her sex (female) and age (50) when she was not selected for the position of Community Outreach and Planning 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. 2019002018 2 Specialist, GS-12. Complainant later amended her complaint to allege that she was subjected to a hostile work environment on the basis of reprisal for her prior protected EEO activity when: 1. On or about August 16, 2011, the Los Angeles District Director requested Complainant provide medical documentation to support her request to resign her supervisory position as Assistant District Director, effective August 28, 2011, and return to the Oxnard field station as a Wage and Hour Investigator; 2. On or around mid-November 2011, the Los Angeles District Director instructed Complainant to either use the government vehicle or use the lower mileage rate if she used her personal vehicle, which is allegedly contrary to use of personal vehicles in the Los Angeles District; 3. During various unidentified dates from August 28, 2011 onward, the Oxnard Field Director instructed Complainant to work in the field office more than previously required as opposed to continuing the episodic in nature teleworking arrangement previously permitted, in addition to subjecting Complainant’s work product to greater scrutiny; 4. On or about December 10, 2011, Complainant received a significantly lower cash bonus than in prior years; 5. On or about March 12, 2012, the Los Angeles District Director and the Oxnard Field Office Director denied Complainant’s request for eight weeks of annual leave from June 18, 2012 through August 10, 2012, and instead offered to allow Complainant five weeks of annual leave; and 6. On or about April 17, 2012, Complainant was issued a counseling memorandum for insubordination. On December 18, 2012, Complainant filed a second EEO complaint (Agency No. DOL 13-09- 027) wherein she alleged that she was subjected to discrimination and a hostile work environment based on reprisal for her prior protected EEO activity when: 1. In October 2012, Complainant’s Supervisor began requiring Complainant to seek approval before traveling to and working at the Los Angeles District Office when her duty station was located in Oxnard; 2. In October 2012, Complainant learned that management used incorrect information in calculating her investigative time percentage resulting in a lower performance rating than she deserved, and her Supervisor refused to change the rating after she alerted the Supervisor to the problem; 3. On an ongoing basis, Complainant’s supervisors have intentionally delayed in responding to her requests for telework; 2019002018 3 4. On an ongoing basis, Complainant’s supervisors have denied her requests for telework in excess of one day per week; and 5. On December 10, 2012, Complainant’s Supervisor told Complainant she was required by the Collective Bargaining Agreement to take lunch during the day rather than skipping it in order to leave early, which she had been doing twice weekly for 15 years in the Los Angeles District Office. On December 24, 2014, Complainant filed a third EEO complaint (Agency No. DOL 15-09-038) wherein she alleged that the Agency subjected her to discrimination and a hostile work environment based on reprisal for her prior EEO activity during the period of January 2014 through October 2014 when: 1. Between on or about May 25, 2014 and June 25, 2014, the Assistant District Director failed to take timely action on transferring a Wage and Hour claim Complainant was investigating to Texas for related discovery of relevant information to complete her investigation; 2. On October 1, 2014, the Assistant District Director gave Complainant her Fiscal Year 2014 performance rating with an overall rating of “Effective;” and 3. In or around January 2014, the Assistant District Director approved the assignment of a Wage and Hour case to Complainant concerning a claim upon which she had not received training.2 After its investigations into the complaints, the Agency provided Complainant with copies of the reports of investigations and notices of her right to request hearings before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The AJ consolidated Agency Nos. D0L 11-09-107 and DOL 13-09- 027. The AJ held a hearing and subsequently issued a decision on June 27, 2018, in favor of the Agency. The AJ held a hearing with respect to DOL 15-09-038 and subsequently issued a decision on September 30, 2018, in favor of the Agency. The Agency issued its final order on December 7, 2018, wherein it adopted both of the AJ’s decisions that Complainant failed to prove discrimination, reprisal, or a hostile work environment as alleged. 3 The instant appeal followed. 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. 2 Complainant withdrew several additional claims during the investigation. 3 The Agency acknowledged that it issued its final order more than 40 days after it received the AJ’s decisions. Thus, the AJ’s decisions were deemed the Agency’s final actions prior to its issuance of its December 7, 2018 decision. 2019002018 4 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decisions and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determinations that Complainant has not proven discrimination, reprisal, or a hostile work environment by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decisions. 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. 2019002018 5 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 January 17, 2020 Date