[Redacted], Opal V., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Aug 11, 2021

Appeal No. 2020002164 (E.E.O.C. Aug. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Opal V.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2020002164 Hearing No. 560-2018-00377X Agency No. DCAA-CASE-W17-012 DECISION 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 December 23, 2019, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Auditor, GS- 0511-12, at the Agency’s Wichita Branch Office, located in Wichita, Kansas. Person A, Supervisory Auditor, was Complainant’s first line supervisor. Between June 29, 2016 and June 24, 2017, Person B, the Field Audit Office Manager, was Complainant’s second line supervisor. From June 25, 2017 to December 8, 2017, Person C became Complainant’s second line supervisor. 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. 2020002164 2 Between August 22, 2016, and the end of June 2017, Person D, the Regional Audit Manager was Complainant’s third line supervisor. Thereafter, Person E became Complainant’s third line supervisor. On May 22, 2017, Complainant was placed on a Performance Improvement Plan (PIP) due to unacceptable performance on the following three critical elements: Critical Element 1, Audit Planning and Approach; Critical Element 2, Audit Performance; and Critical Element 4, Communications and Organizational Support. Complainant was removed from the Agency effective December 8, 2017, for failure to meet Critical Element 1 and Critical Element 2. On October 13, 2017, Complainant filed an EEO complaint, which was subsequently amended, alleging that from August 2016 - December 6, 2017, the Agency subjected her to a hostile work environment on the bases of disability (history of alcoholism and idiopathic hypersomnia) and in reprisal for prior protected EEO activity when: 1. On August 22, 2016, Person A, Supervisory Auditor accused her of engaging in alcohol use during work hours. She told Complainant that Human Resources instructed her to send Complainant home when she suspected Complainant was under the influence of alcohol. 2. On August 23, 2016, Person A accused Complainant of engaging in alcohol use during work and sent Complainant home for the remainder of the workday; the absence was charged to administrative leave. 3. On May 9, 2017, Complainant's request to participate in the Voluntary Leave Donation Program (VLDP) was disapproved by the Human Resources Specialist. 4. On May 11, 2017, during a performance discussion with Person A and Person B, Branch Manager, Person B made an offensive comment that inferred that Complainant’s recent absence of approximately ten days due to the flu was due to the use of alcohol; he commented that Complainant needed to make changes in her life so that she did not get sick so often. 5. On June 5, 2017, Complainant received an email from Person B accusing Complainant of having alcohol in her water bottle during the performance evaluation discussion on May 11, 2017. 6. On July 10, 2017, Complainant was informed that because of attendance and performance issues, she could no longer take her computer home, nor continue to work a flexible schedule. 7. On July 31, 2017, Complainant’s request for annual leave for her absence on July 28, 2017, was denied by Person A, and instead Complainant’s absence of July 28, 2017, was charged to Leave Without Pay (LWOP); ultimately annual leave was approved for Complainant's absence on July 28, 2017. 8. On August 9, 2017, Person A issued Complainant a Notice of Leave Restriction. 9. On September 21, 2017, Complainant was denied annual leave and charged Absent Without Leave (AWOL) for 0.5 hours when Complainant left work on September 21, 2017, to take her daughter to school; the AWOL was later changed to annual leave. 2020002164 3 10. On September 26, 2017, Complainant was charged AWOL for 3.5 hours, the period of time that she was away from work on that date to address a domestic situation involving her boyfriend and his mother. 11. On October 2, 2017, Complainant was issued a Notice of Proposed Removal by Person C, Branch Manager, after being informed that her performance during her Performance Improvement Plan (PIP) from May 22, 2017, to September 11, 2017, was “Unacceptable.” 12. On October 12, 2017, Complainant attended a mediation meeting in which the Union was unable to speak on her behalf but just physically be in attendance. During this mediation, various thoughts were discussed including a last chance agreement and to work for another supervisor. Management (Person C and Person E) did not agree to any recommendations. 13. On October 12, 2017, during mediation, Person C made several references to her past conduct and performance (alcohol use, tardiness, and poor quality of work). In 2012, Complainant filed an EEO complaint under the same grounds Person C referred to during the recent mediation; she settled the EEO complaint in 2012 and the Agency agreed to keep the files sealed and private. In this case management made a nexus between the previous EEO settlement supporting the employee’s termination.2 14. On December 6, 2017, Complainant was provided notice in person about being removed from the Agency effective December 8, 2017. In a letter dated February 15, 2018, the Agency dismissed incidents 12 and 13 for failure to state a claim. The Agency accepted Complainant’s claim of a hostile work environment for investigation under case number DCAA-CASE-W17-012. The Agency noted that Complainant also claimed that she was removed from the Agency effective December 8, 2017, based on her disability and in reprisal for prior protected EEO activity. The Agency accepted the termination claim as a mixed-case claim under a separate case number, DCAA-CASE-W18-001.3 At the conclusion of the investigation on the accepted claims, 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). Complainant requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that the Agency properly dismissed incidents 12 and 13 for failure to state a claim. 2 By email dated February 1, 2018, Complainant’s representative confirmed that Complainant would not pursue the allegation of breach raised in incident 13. 3 The Agency noted it issued a decision on DCAA-CASE-W18-001 on April 3, 2019, finding no discrimination. That complaint and Agency decision regarding the termination is not before us. Therefore, we find that claim 14 merges into the actual removal claim not at issue in this decision and we shall not further address this claim. The Notice of Proposed Removal is considered in claim 11. 2020002164 4 Further, the decision found that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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”). At the outset, we note Complainant does not challenge the definition of the claims as identified by the Agency in its final decision. Moreover, we find the record in the present case was adequately developed. We further find, the Agency properly dismissed claims 12 and 13 for failure to state a claim. The Agency determined that incidents 1 and 2 were inextricably intertwined and analyzed them jointly. The Agency noted that on August 22, 2016, Person A advised Complainant she smelled alcohol on Complainant and if she continued to smell alcohol on Complainant when she came to work, she would be asked to leave for the day and be placed on administrative leave. The Agency stated that on August 23, 2016, Person A again smelled alcohol on Complainant and asked Complainant to leave work and placed her on administrative leave. Regarding claim 3, Complainant noted that she had been sick for over a week and requested advanced sick leave and to participate in the VLDP. Complainant stated she was approved for advanced sick leave but her request for allowance to participate in the VLDP was denied. The Agency stated that the VLDP is designed for employees facing a medical emergency. The Human Resources Specialist stated that the medical documentation Complainant submitted in support of her VLDP participation did not indicate that she faced any such medical emergency. The Human Resources Specialist explained that Complainant’s documented and diagnosed medical condition (conjunctivitis, resolved as of May 9, 2017) did not qualify her for VLDP participation. Regarding claim 4, Complainant claimed that on May 11, 2017, during a performance discussion with Person A and Person B, Complainant stated that she had recently been absent and that she did not want to get anyone sick shortly before a meeting. Complainant claimed that Person B said that he did not think that anyone would have gotten sick from her being there. Complainant stated she asked him what he meant by the comment because she said it seemed as he was insinuating that she was not actually sick. Complainant stated that he said she should consider making changes in her life so she did not get sick. 2020002164 5 Person B stated that he did not reference Complainant’s use of alcohol during the meeting. Person A, who was also in attendance at the meeting, stated she did not recall Person B referring to Complainant’s use of alcohol at the stated meeting. Regarding claim 5, Person B stated he issued the memorandum to put Complainant “on notice” that he smelled alcohol from her water bottle. The Agency noted that as it was suspected Complainant had alcohol on her person during duty hours and while on federal property, Human Resources was contacted immediately, however it took some time to decide how to proceed. Regarding claim 6, Complainant states she had to handle some union/EEO items and asked to do it at home on her personal time. Complainant states she was told that because she was on a PIP and her telework privileges were terminated, she was no longer allowed to take her computer home. Person A noted that Complainant requested to take her laptop home to complete home loan applications. Person A stated she discussed Complainant’s request to take a laptop home with Human Resources and they determined there was no reason for Complainant to take her computer home. Person C stated that because she was no longer eligible for telework due to being on a PIP, she no longer had a need to take her laptop home. The Human Resources Specialist confirmed that at this time Complainant was on a PIP for 90 days beginning on May 22, 2017 and thus, restrictions applied. Regarding claim 7, Person A noted Complainant was on a PIP at the time and provisions of the PIP limited Complainant’s use of leave for unscheduled absences from work; and that unscheduled absences from work due to illness were required to be supported by sufficient medical documentation. Person A noted leave was denied for July 28 since Complainant did not comply with the requirement to bring a doctor’s note for her absence when she returned to work on July 31. Person A noted that Person C and the Human Resources Specialist agreed that Complainant’s time should be coded as LWOP since Complainant did not comply in obtaining a doctor’s note for her absence. However, Person C later decided to allow Complainant to take annual leave for July 28. Regarding claim 8, Person A placed Complainant on leave restriction verbally on August 8, 2017 and gave her a written memorandum on August 9, 2017. According to the Notice of Leave Restriction memorandum, Person A counseled Complainant on December 15, 2015, in relation to “consequences of arriving late to the office.” The memorandum noted that since that time, Complainant had requested numerous days of unscheduled leave and/or reported to work after her scheduled start time. The memorandum further noted that Complainant currently had a negative leave balance of -78 sick hours. In her declaration, Person A stated that Complainant continued to request leave for non-emergencies and non-illness related instances. Person A stated that she and Complainant discussed changing Complainant’s start time on a couple of different occasions; however, Complainant stated she did not want to move her start time as she needed to pick up her daughter from school or daycare. Person A also noted that Complainant did not request any accommodations prior to August 8, 2017. Moreover, Person A stated that Complainant had monthly doctor appointments that were scheduled near her lunch time. 2020002164 6 Person A explained that she and Complainant agreed that Complainant could take a longer lunch and make up any time at the end of the day. Person C stated the leave restriction letter was provided to Complainant based on prior abuse of leave. He noted that Complainant was offered the opportunity to adjust her work schedule to allow for reporting to work later. However, Complainant refused to consider a later start time as she insisted on leaving work by 4:00 p.m. daily. Thus, he noted that management offered Complainant the ability to make up missed time (i.e., a later start and stop time); however, she refused. Person C explained without a later stop time, there is no opportunity to make up the missed work by Complainant when she reported late or left work early without prior approval. Regarding claim 9, Complainant noted that her boyfriend was supposed to take her daughter to school; however, on September 21, 2017, he was unable to do so. She states that she left work that day to drop her daughter off at school and requested half an hour of leave. Person A noted Complainant was on a PIP at the time due to conduct issues and that the provisions of the PIP limited her use of leave for unscheduled absences from work. Thus, Person A denied the request for leave. Complainant appealed the determination to Person C. Person C originally sustained Person A’s determination. Complainant requested reconsideration. Person C subsequently approved the leave request. Person C stated that while he still felt the initial denial of annual leave was appropriate, he allowed the leave since it was only .5 hours of leave and given the time spent in disagreement already exceeded the .5 hours of the actual leave request. Complainant claimed that Coworker 1 and Coworker 2 “occasionally had to tend to issues related to their children/families and were allowed to take leave.” Person A stated that Coworker 1 and Coworker 2 started work each day at their agreed to start time and attended work on a regular basis. Person A stated that Coworker 1 and Coworker 2 scheduled leave in advance with their supervisor unless it was an unforeseen circumstance which was a rarity. Person A also noted that Coworker 1 and Coworker 2 were not placed on leave restrictions or on a PIP requiring them to improve their performance. Regarding claim 10, Complainant stated she left work on September 26, 2017, to monitor her boyfriend’s mother and was charged AWOL. Person A stated Complainant was on a PIP and leave restriction at the time. Person A explained that provisions of both limited Complainant’s use of leave for unscheduled absences from work. Thus, she denied the request for leave. Person C stated Complainant left work in the day at issue without prior approval from her supervisor, Person A. Person C found Complainant’s explanation for leaving work did not describe an emergency situation; rather, it described a domestic situation between Complainant’s boyfriend and his mother, in which Complainant chose to be involved. Person C stated AWOL was appropriate since the absence did not comply with the leave restriction letter. Regarding claim 11, Person A noted Complainant did not successfully complete her PIP and was issued a Notice of Proposed Removal for failing to meet her performance standards. Person C stated he provided the Notice of Proposed Removal to Complainant because she had not satisfactorily improved her performance for two critical performance elements: (1) Audit Planning and Approach; and (2) Audit Performance. 2020002164 7 After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. We find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Complainant simply has provided no evidence to support her claim that her treatment was the result of her disability or prior EEO activity. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 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. 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. 2020002164 8 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. 2020002164 9 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 August 11, 2021 Date