Shamika P.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120141435 (E.E.O.C. Oct. 20, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shamika P.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 0120141435 Agency No. DOI-FWS-12-0483 DECISION Complainant appeals to the Commission from the Agency’s final decision dated January 23, 2014, finding no discrimination with regard to her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND In her complaint, filed on October 16, 2012, Complainant alleged discrimination based on race/color (White), sex (female), national origin (American), age (over 40), disability, and in reprisal for prior EEO activity when on June 28, 2012, she received a letter of suspension. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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. 0120141435 2 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incident. At the relevant time period, Complainant was an Administrative Officer, GS-11, at the Agency’s Ecological services, Chesapeake Bay Field Office, in Annapolis, Maryland. Complainant claimed that the suspension at issue was initiated by her former supervisor (S1). The record indicates that S1 was Complainant’s supervisor for four years until his transfer to the Assistant Regional Director position in December, 2011. S1 indicated that his office allowed staff to occasionally bring their children into work when physician appointments and other conflict arose with advance notice to their supervisors. S1 stated that in late 2010, to early 2011, Complainant however began to bring her children in for the entire workday on a regular basis. Specifically, S1 indicated that his staff reported to him that Complainant’s children: slept on her small office floor or under her desk; used a service volunteer’s computer; answered the security camera door monitoring system to let a person into the building; and used her office computer to view Facebook, an office phone, and the lobby phone. S1 also stated he was informed that Complainant allowed her daughter’s boyfriend to use her computer. S1 indicated that on January 21, 2011, he verbally and in writing counseled Complainant about her misconduct. S1 stated that during Complainant’s April 8, 2011 mid-year performance evaluation, he reiterated the concerns about her conduct and about her meeting her performance standards. S1 stated that in May, 2011, and again in August, 2011, Complainant continued to bring her children, son and daughters, to work and allowed them to use government computers and printer; and she obtained an extra building access card and gave it to her daughter to access the government building in violation of the Agency security policy. S1 indicated that before he left his supervisory position, he drafted a proposal to suspend Complainant for her misconduct; Human Resources Office worked on the matter; and he also briefed the matter to his replacement, i.e., Complainant’s supervisor (S2) at the time of the suspension, who agreed with the suspension and followed through with the suspension. S2 indicated that she had been Complainant’s supervisor since January, 2012, and before the S1 left his supervisory position, S1 informed her of Complainant’s misconduct issues. Based 0120141435 3 on that information, stated S2, she issued Complainant’s proposed suspension on April 11, 2012, for her misuse of government equipment, for failure to follow instructions, and for failure to observe security rules and regulations. On June 28, 2012, S2’s Deputy Regional Director approved and signed Complainant’s letter of 14-day suspension at issue. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that she was denied a reasonable accommodation. After a review of the record, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances or that the Agency’s reason for the suspension was a pretext for discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 0120141435 4 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 October 20, 2016 Date