[Redacted], Hettie T., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Oct 13, 2021

Appeal No. 2021001251 (E.E.O.C. Oct. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hettie T.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021001251 Hearing Nos. 541-2017-00122X; 541-2017-00022X Agency Nos. DOI-OS-17-0064; DOI-OS-16-0084 DECISION On November 2, 2020, 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 decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-12, at the Agency’s Interior Business Center in Denver, Colorado. On January 11, 20162 and December 19, 2016, respectively, Complainant filed two EEO complaints alleging discrimination as follows, as defined by the EEOC Administrative Judge (AJ): 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 The complaint filed on January 11, 2016, was subsequently amended to include Claim 2. 2021001251 2 1. The Agency discriminated against Complainant based on race (Hawaiian), sex (female), and in reprisal for prior protected EEO activity when, on November 5, 2015,3 Complainant was placed on performance standards for fiscal year 2016, that were significantly different from the performance standards she had been placed on in previous fiscal years; 2. The Agency discriminated against Complainant based on reprisal for prior protected EEO activity when: a. On February 24, 2016, Complainant’s request for compensatory time completed on January 26, 2016, was denied; b. On or about February 29, 2016, Complainant received verbal and written counseling regarding alleged performance deficiencies committed inside of the fiscal year 2016 rating period; c. On May 9, 2016, Complainant received a “Written Letter of Counseling” for failing to follow the instructions of a W-2 Test Run for DB (database) 239 request; and 3. The Agency discriminated against Complainant based on race (Hawaiian), sex (female), age (58), and in reprisal for prior protected EEO activity when, on October 24, 2016, Complainant received a “Fully Successful” fiscal year 2016 annual performance rating, which did not accurately reflect her performance. At the conclusion of the investigations for each complaint, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request a hearing before an AJ. Complainant requested a hearing in both cases, and the AJ assigned to the matters consolidated the two complaints for discovery and hearing. The AJ held a hearing and on September 9, 2020, issued a decision in favor of the Agency. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).4 The instant appeal followed. In her decision, the AJ found that the events Complainant claims constituted discrimination or reprisal were “all normal work and performance disagreements.” Specifically, regarding Claim 1, the AJ found that “all employees in [Complainant’s] section were placed on new performance plans.” The AJ further determined that the process of updating the team position descriptions and performance standards “had been ongoing for more than a year,” and that there was “no evidence that Complainant was the focus of these changes in any way.” 3 In the AJ’s decision, this claim is defined as occurring on November 5, 2016. Upon review of the record, the correct date is November 5, 2015. 4 On November 16, 2020, the Agency issued a final order fully implementing the AJ’s decision. By that time, however, 40 days had elapsed since the Agency’s receipt of the AJ’s decision on September 10, 2020, and Complainant had already filed the instant appeal. We therefore consider the AJ’s decision to be the Agency’s final order. 2021001251 3 Regarding Claim 2a, the AJ found that the Agency’s reason for denying Complainant’s compensatory time was that Agency policy required Complainant to be “actively involved” during her time as an on-call worker, which the Agency claims she was not. Thus, the Agency only allowed Complainant to earn part of the compensatory time she claimed she deserved. The AJ found that the on-call policy was open to the interpretation the Agency gave it. Even more important to the AJ’s analysis, however, was that the evidence did not show a discriminatory motive behind any of the disagreements Complainant had with her supervisors regarding the denial of compensatory time. Regarding Claims 2b and 2c, the AJ found that S1 had given Complainant verbal and written counseling based on an event in December 2015, during which S1 claimed Complainant did not follow directions, resulting in a problem processing employees’ W-2s. In May 2016, S1 issued another letter of counseling, which alleged Complainant had again failed to follow instructions, causing an extra four hours of work, when she ran an incorrect test and ignored a warning in the program software. While Complainant denied that any of her actions were in error or required verbal/written counseling, the AJ found that there was no evidence at the hearing or in the record that such counseling resulted from discriminatory animus. The AJ noted that Complainant had previously asked S1 for feedback on her performance, and the counseling constituted such feedback. Even if S1 had been wrong in assigning blame to Complainant, the AJ concluded that discrimination can be found only if S1’s error resulted from discrimination or reprisal; the AJ found no such information present. Regarding Claim 3, the AJ concluded that there was no evidence that Complainant’s protected bases were considered in her “Fully Successful” rating. The AJ noted that S1 had written up Complainant twice during fiscal year 2016, thus supporting the lower rating, and that the rating for all individuals supervised by S1 decreased for fiscal year 2016. Complainant was therefore, according to the AJ, not treated any differently than the other members of S1’s team. To show discrimination based on age, Complainant pointed to a conversation she had with S1 where S1 mentioned that while S1 could not retire, Complainant should consider it “if the stress got too bad.” Even based on Complainant’s hearing testimony about this conversation, the AJ did not believe it was an ageist comment. In sum, the AJ found that there was no evidence of discrimination, and that “[m]erely because Complainant is a member of protected groups is not enough to establish discrimination.” ANALYSIS AND FINDINGS 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. NLRB, 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. 2021001251 4 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). Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VI.C (Aug. 5, 2015) provides that on appeal to the Commission, the burden is squarely on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are not supported by substantial evidence. See id. In this case, this means that Complainant has the burden of pointing out where and why the AJ’s findings are not supported by substantial evidence. Although Complainant argues on appeal that the record “clearly” shows discrimination, she cites no specific evidence in this portion of the brief, and the record evidence Complainant does cite in her brief is almost entirely from Complainant’s own affidavits and submissions. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order finding no discrimination. 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. 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. 2021001251 5 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. The court has the sole discretion to grant or deny these types of requests. 2021001251 6 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 13, 2021 Date