[Redacted], Eileen S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.Download PDFEqual Employment Opportunity CommissionOct 7, 2021Appeal No. 2021003523 (E.E.O.C. Oct. 7, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021003523 Hearing No. 570-2018-01037X Agency No. CSRD201301032 DECISION On May 8, 2021, 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 March 4, 2021 final order concerning an 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant had worked as a Grade GS-14, non-supervisory human resources specialist at another agency. On May 20, 2012, the Agency hired Complainant as a Supervisory Human Resources Specialist, Grade GS-15, as Chief of the Employee Management Services Branch (EMS Branch), Office of Human Resources Management (OHRM) Division within the Agency’s Departmental Management of its headquarters in Washington, D.C. 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. 2 2021003523 During the period at issue, Complainant supervised the EMS Branch primarily out of an office in Beltsville, Maryland. On May 16, 2013, the Agency issued a notice of Unsuccessful Completion of Supervisory Probation, hereinafter referred to as the “demotion letter.” The demotion letter effectively removed Complainant from her GS-15 supervisory position as Chief of EMS to a non-supervisory GS-14 position as a human resources specialist. On March June 12, 2013, Complainant filed a mixed-case complaint with the Merit Systems Protection Board (MSPB) challenging the propriety of her demotion. Complainant simultaneously filed a formal EEO complaint that that the Agency discriminated against her on the bases of race (African-American), sex (female), age (50 years), mental disabilities (post- traumatic stress disorder, depression, panic disorders, anxiety disorders), and in reprisal for prior protected EEO activity. On August 16, 2013, the MSPB dismissed the matter for lack of jurisdiction because Complainant’s demotion had occurred during Complainant’s probationary employment period. Thereafter, the Agency accepted Complainant’s EEO complaint concerning her May 2013 demotion. At the conclusion of a formal EEO investigation, the Agency provided Complainant with a copy of its report of investigation. The Agency also notified Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested an EEOC hearing On November 14, 2016, the assigned AJ, granted the Agency’s motion to dismiss due to an August 2013 settlement agreement Complainant and the Agency entered into regarding a prior EEO complaint (Agency No. 2013-00268). Complainant appealed. This Commission reversed the dismissal because the demotion issue had not been covered by the Agency’s settlement agreement with Complainant and the MSPB’s dismissal for lack of jurisdiction had not precluded EEOC from rendering a substantive decision concerning the demotion claim. See EEOC Appeal No. 0120171063 (Jan. 15, 2018). As a result, this matter was remanded to a new AJ from the Commission’s Washington Field Office. Between January 26, 2021 and January 28, 2021, a hearing was held via videoconference. In addition to Complainant, the AJ heard live testimony from six witnesses. Throughout the hearing, Complainant was represented by an attorney who examined witnesses as well as presented evidence and argument on Complainant’s behalf. On February 16, 2021, the AJ issued an initial bench decision followed by a formal decision, dated March 4, 2021. The AJ determined Complainant had failed to prove with preponderant evidence that the Agency demotion had been discriminatory. After the Agency declined to issue a final order within forty days of receiving the AJ’s decision, the AJ’s decision became Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 3 2021003523 The instant appeal followed. In her pro se appeal, Complainant contended that managers and coworkers set her up for failure her because she was the only supervisory GS-15 who was an African American female. Complainant argues that the AJ had ignored testimony during the hearing that supported her position that the Agency’s reasons for her demotion were pretextual. Complainant accuses the AJ of ignoring testimony that her comparators, who were also supervisory GS-15s, but of different races or sex were treated more favorably. For example, Complainant asserts that her second-line supervisor and OHRM Director (African American male) who had issued the demotion letter, had failed to discuss problems concerning her supervision of subordinates or problems concerning her interactions with OHRM’s Agency customers. Complainant states the Agency had effectively denied her the opportunity to correct any performance deficiencies before they were listed in the May 16, 2013 demotion letter. Next, Complainant asserts that the AJ improperly denied three motions Complainant had made to sanction the Agency for non-compliance with the AJ’s discovery orders. In support of this position, Complainant attaches, as appellate exhibits, email correspondence praising particular accomplishments prior to her demotion. According to Complainant, she could not present this evidence during the hearing because the AJ insufficiently enforced those orders compelling the Agency to disclose information favorable to Complaint’s case. Finally, Complainant alleges that one witnesses from management had improperly discussed hearing testimony with Agency employees who were otherwise not involved with this case. Complainant states that her legal representative had informally contacted that witness, but the AJ was not aware that a witness had violated the AJ’s order to refrain from disclosing testimony from the hearing. ANALYSIS AND FINDINGS As an initial matter, as to Complainant’s arguments that the AJ erred in conducting the hearing, we find that the AJ did not abuse her discretion under 29 C.F.R. §§ 1614.109(a) and 1614.109(e). EEOC gives the AJ wide latitude in directing the terms, conduct, and course ofthe hearing. The claim that the AJ abused her discretion at the hearing did not surpass a very high bar for reversible AJ error. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sep. 13, 2016). We further find AJ sanctions were not required. Complainant did not evidence that the Agency’s alleged compliance failures were in bad faith. We are not persuaded that the Agency’s acts or omissions were contumacious conduct, were intentionally prejudicial to Complainant’s case or caused it unconscionable delay. Maxima S. v. Dep't of Justice, EEOC Appeal No. 2020002977 (Sep 21, 2021). Consequently, we find the AJ did not abuse her discretion in denying Complainant’s motions to sanction the Agency. 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.” See Universal Camera Corp. v. Nat’l Labor Rel. Bd., 340 U.S. 474, 477 (1951). 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). 4 2021003523 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. EEO Management Directive 110 (EEO-MD-110), at Ch. 9, § VI.B. (Aug. 5, 2015). An AJ's conclusions of law are subject to a de novo standard of review, when a hearing was held. We review the merits of Complainant’s case by applying the U.S. Supreme Court's three-part test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish her prima facie case by presenting facts that, if undisputed, reasonably infer discrimination, i.e., that a prohibited consideration factored in the adverse employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The Agency bears the second burden, to articulate a legitimate and nondiscriminatory reason for the adverse action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). If the Agency can articulate a legally sufficient reason behind its actions, then Complainant bears the third burden of proving, by preponderant evidence, that Agency's reason was a pretext to mask an actual discriminatory motive. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). At all times, Complainant must persuade the fact-finder that the Agency's adverse action was motivated by illegal animus against her. See U.S. Postal Serv. v. Aikens, 460 U.S. 711 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133 (2000). We presume arguendo that Complainant established a prima facie case on the raised bases. We therefore next examine the reasons the Agency advanced to justify the demotion action on May 16, 2013. Agency management witnesses explained that the adverse action was warranted because of Complainant’s problematic behavior as described in the demotion letter. For example, in April 2013, the EMS Branch had prepared a disciplinary memorandum for an Agency attorney who had failed to maintain an active law license. When the Office of General Counsel (OGC) advised Complainant that the memorandum was lacking proper notification of bargaining-unit employee rights, it was reported that Complainant became “combative” to such a degree that OGC’s leadership told the OHRM Director that they preferred not to work with Complainant or EMS Branch thereafter. Another justification, that was stated in the demotion letter, had occurred on December 13, 2012. On that date, the OHRM Director had issued Complainant a letter of expectations. He then attempted to counsel Complainant on how to improve her approach to supervising the EMS Branch. Instead of accepting accountability or listening to criticism, Complainant cut-short the discussion and stormed out of the OHRM Director’s office and absented herself from the workplace. By documenting these aforementioned events, among others, the Agency has articulated legitimate reasons for the demotion that are non-discriminatory. In support of her position that the Agency’s reasons were pretextual, Complainant’s appellate brief called attention to hearing testimony that OHRM Director had counseled other GS-15s when they made mistakes, whereas Complainant maintained the OHRM Director did not tell her about staff or customer complaints before the December 13, 2012 Letter of Expectations, that was followed by the demotion letter of May 16, 2013. 5 2021003523 The OHRM Director testified that he had instead told Complainant’s immediate supervisors about her performance shortcomings. It was unclear whether her first-line supervisors made Complainant aware of the OHRM Director’s concerns. We noted that Complainant had three different acting supervisors during her unsuccessful probationary period. It was also apparent that OHRM was going through a complex reorganization process that Complainant stated that she had been set-up for failure with too little staff with an overburdened workload. On the other hand, Complainant declined to attend most of the regular management meetings where assignments and resources were discussed. Regarding the demotion letter’s statement that she had failed to follow instructions to create standard operating procedures for the EMS Branch, Complainant testified that she had started drafts but believed doing so was unnecessary. Another reason the Agency provided in the demotion letter was that two employees in the EMS Branch were displeased with Complainant’s approach to management. The hearing transcript revealed that a male Caucasian GS-15 in OHRM had a reputation for being abusive toward his staff as well as colleagues. However, his discourteousness was distinguishable from Complainant’s in that this other branch chief had was not a probationary supervisor. We also observed that, unlike Complainant, the male Caucasian GS-15’s lack of decorum was not compounded by performance errors that were attributed to failure to review the work from his branch. To the extent that Complainant that challenged explanations for the demotion as pretextual, Complainant simply has not proven to a preponderance of evidence that discriminatory factors played any role in the Agency’s decision to demote her. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s finding of no discrimination in her decision after a hearing. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 6 2021003523 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 7 2021003523 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 October 7, 2021 Date Copy with citationCopy as parenthetical citation