0120140420
05-11-2016
Sharonda M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sharonda M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140420
Hearing No. 560-2012-00049X
Agency No. 200306572011101206
DECISION
On November 7, 2013, Complainant filed an appeal from the Agency's October 31, 2013, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant and subjected her to a hostile work environment based on race, color, and in reprisal for prior EEO activity when:
1. From November 14, 2010, to December 19, 2010, the Chief of Staff (CS) detailed Complainant from her Medical Support Assistant (MSA), GS-5 position to perform the duties of an MSA, GS-6, position;
2. From mid-November 2010 through February 20, 2011, Complainant was the only employee required to work weekends;
3. On December 6, 2010, Complainant's then supervisor (S1) issued Complainant a fully successful performance appraisal;
4. On December 20, 2010, the CS told Complainant that she is not a team leader, not a team player, not supervisory material, and that she will never be a supervisor;
5. On January 3, 2011, Complainant's co-workers began rotating to perform the duties of an MSA, GS-6, position, but Complainant was not allowed to begin the rotation until February 2011;
6. On February 3, 2011, the Recall Center Supervisor (RCS) yelled and screamed at Complainant;
7. On February 15, 2011, the RCS quoted a "threatening" biblical scripture to Complainant, stating that "no weapons formed against me shall prosper";
8. On March 7, 2011, Complainant's current supervisor (S2) threw patients' medical records at Complainant;
9. On March 9, 10, 14, and 15, 2011, S2 assigned only Complainant extra duties, such as assembling exam requests for scheduling clerks, setting up clinics every morning that other staff maintain, and taking files to separate processing areas;
10. From March 20, 2011, to December 19, 2011, the CS detailed Complainant from her MSA, GS-5, position, to perform the duties of an MSA, GS-6, position;
11. On March 25, 2011, S2 disapproved Complainant's request for annual leave (AL) and charged her absent without leave (AWOL);
12. On April 7, 2011, S2 told Complainant that her desk would be moved to enable another employee to relocate to that area. S2 then had Complainant move from her office to a desk in an open area without any privacy;
13. On April 11, 15, and 18, 2011, Complainant had to take late breaks and lunches, or did not take breaks or have lunch all day;
14. On April 15, 2011, through April 20, 2011, and May 10, 2011, through May 18, 2011, Complainant ran the departments daily operations without any assistance;
15. On April 13, 21, 22-30, 2011, and May 3, 2011, S2 assigned Complainant additional duties, to include inputting C-files in the computer and closing patient accounts, on top of those in her position description;
16. On May 3, 2011, S2 had Complainant move from the desk in an open area to permanently work the front counter without a desk;
17. Beginning May 4, 2011, Complainant kept her personal belongings under a desk after S2 and the Assistant Chief of Staff (ACS) told Complainant that her desk belonged to another employee and assigned Complainant a file drawer for her personal items;
18. On May 13, 2011, S2 threw some letters at Complainant;
19. On September 12, 2011, Complainant was suspended for five days; and
20. On November 9, 2011, S2 gave Complainant a fully successful performance rating.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an MSA (GS-5) at the Agency's Compensation and Pension (C&P), St. Louis Health Care System in St. Louis, Missouri. In late 2010, the CS (African-American, black, prior EEO activity) solicited volunteers to detail into a GS-6, MSA position. Complainant and another employee (E1) (African-American, black, unknown EEO activity) were rotated into this position, with E1 serving the first 30-day rotation, and then Complainant. S1 (Caucasian, white, prior EEO activity) informed Complainant that E1 would be detailed first because she had more seniority, based on her service computation date.
From November 2010, through February 2011, Complainant worked overtime on the weekends. Complainant stopped working on the weekends when she notified her managers in February 2010 that she no longer wished to work on the weekends.
On December 6, 2010, S1 issued Complainant a Performance Appraisal of Fully Successful, which she refused to sign. On December 20, 2010, Complainant alleged that another supervisor (S3) (African-American, black, prior EEO activity) informed her that the CS stated that Complainant was not a leader or team player; and that she would never become a supervisor.
On February 3, 2011, Complainant alleged that the RCS (African-American, black, no prior EEO activity) screamed and yelled at her because his employees needed help, and that Complainant needed to help them. Complainant stated that she reported the incident to the CS, but that she did not address her complaint. On February 15, 2011, Complainant alleged that the RCS came to her and stated a "threatening" biblical quote, "no weapons formed against me shall prosper." Complainant alleged that the RCS also stated that he came over to pray because there were many evil spirits in C&P. Complainant claimed that the RCS did this in response to her making a complaint about the incident on February 3, 2011.
On March 7, 2011, Complainant alleged that S2 (Hispanic, white, unknown EEO activity) threw a file at her.2 On March 9, 10, 14, and 15, 2011, Complainant alleged that S2 assigned her extra duties, such as scheduling clerks, setting up clinics, and taking files to separate processing areas. On March 25, 2011, Complainant alleged that S2 denied her request for AL and charged her AWOL.
On April 7, 2011, Complainant's desk was moved from a private area to an open area, without any privacy. Complainant alleged that S2 moved her because another employee (E2) (Caucasian, white, no prior EEO activity) wanted Complainant's desk. On April 11, 15, and 18, 2011, Complainant claims that she had to take a late lunch break, or was unable to take any lunch break. Complainant stated that she was unable to take a break because no one was available to relieve her. On April 20, 2011, and May 10, 11, 16, 17, and 18, 2011, Complainant alleged that she had to run the entire department alone because other employees were on leave.
On April 21, 22, 25-30, 2011, Complainant alleged that S2 assigned her additional duties, such as inputting C-files and closing patient accounts, which were GS-6 level duties, but that she was not paid a higher amount. On May 6, 2011, S2 moved Complainant again, this time to the front counter, without a desk.
Also on May 6, 2011, Complainant allegedly called S2 a liar and became disruptive during a staff meeting. On August 22, 2011, Complainant was issued a five-day suspension, effective September 12-16, 2011, for conduct unbecoming a federal employee when she was disrespectful to S2 during the May 6, 2011, staff meeting.
On March 26, 2011,3 Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (black), and reprisal (prior EEO complaints) under Title VII of the Civil Rights Act of 1964 when:
1. From November 14, 2010, to December 19, 2010, the CS detailed Complainant from her MSA GS-5, position to perform the duties of an MSA, GS-6 position;
2. From mid-November 2010, through February 20, 2011, Complainant was the only employee required to work weekends;
3. On December 6, 2010, S1 issued Complainant a fully successful performance appraisal;
4. On January 3, 2011, Complainant's co-workers began rotating to perform the duties of an MSA, GS-6, position but Complainant was not allowed to begin the rotation until February 2011;
5. On March 9, 10, 14, and 15, 2011, S2 assigned only Complainant extra duties, such as assembling exam requests for scheduling clerics, setting up clinics every morning that other staff maintain, and taking files to separate processing areas;
6. From March 20, 2011, to December 19, 2011, the CS detailed Complainant from her MSA, GS-5, position, to perform the duties of an MSA, GS-6 position;
7. On March 25, 2011, S2 disapproved Complainant's request for AL and charged her AWOL;
8. On September 12, 2011, Complainant was suspended for five days; and
9. On November 9, 2011, S2 gave Complainant a fully successful performance rating.
Complainant also alleged that she was subject to a hostile work environment based on race, color, and in reprisal for prior EEO activity when:
10. From November 14, 2010, to December 19, 2010, the CS detailed Complainant from her MSA, GS-5 position to perform the duties of an MSA, GS-6, position;
11. From mid-November 2010, through February 20, 2011, Complainant was the only employee required to work weekends;
12. On December 6, 2010, S1 issued Complainant a fully successful performance appraisal;
13. On December 20, 2010, the CS told Complainant that she is not a team leader, not a team player, not supervisory material, and that she will never a supervisor;
14. On January 3, 2011, Complainant's co-workers began rotating to perform the duties of an MSA, GS-6, position, but Complainant was not allowed to begin the rotation until February 2011;
15. On February 3, 2011, the RCS yelled and screamed at Complainant;
16. On February 15, 2011, the RCS quoted a "threatening" biblical scripture to Complainant, stating that "no weapons formed against me shall prosper";
17. On March 7, 2011, S2 threw patients' medical records at Complainant;
18. On March 9, 10, 14, and 15, 2011, S2 assigned only Complainant extra duties, such as assembling exam requests for scheduling clerks, setting up clinics every morning that other staff maintain, and taking files to separate processing areas;
19. From March 20, 2011, to December 19, 2011, the CS detailed Complainant from her MSA, GS-5, position, to perform the duties of an MSA, GS-6, position;
20. On March 25, 2011, S2 disapproved Complainant's request for AL and charged her AWOL;
21. On April 7, 2011, S2 told Complainant that her desk would be moved to enable E2 to relocate to that area. S2 then had Complainant move from her office to a desk in an open area without any privacy;
22. On April 11, 15, and 18, 2011, Complainant had to take late breaks and lunches, or did not take breaks or have lunch all day;
23. On April 15, 2011, through April 20, 2011, and May 10, 2011, through May 18, 2011, Complainant ran C&P's daily operations without any assistance from S2, E2, or other employees;
24. On April 13, 21, 22-30, 2011, and May 3, 2011, S2 assigned Complainant additional duties, to include inputting C-files in the computer and closing patient accounts, on top of those in her position description;
25. On May 3, 2011, S2 had Complainant move from the desk in the open area to permanently work the front counter without a desk;
26. Beginning May 4, 2011, Complainant kept her personal belongings under a desk after S2 and the ACS told her that her desk belonged to E2, and assigned Complainant a file drawer for her personal items;
27. On May 13, 2011, S2 threw some letters at Complainant;
28. On September 12, 2011, Complainant was suspended for five days; and
29. On November 9, 2011, S2 gave Complainant a fully successful performance rating.
At the conclusion of the investigation, 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. Complainant timely 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 Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency assumed, without finding, that Complainant had established a prima facie case of discrimination based on race, color, and in reprisal for prior EEO activity; and found that the Agency had articulated legitimate, non-discriminatory reasons for its actions.
In regards to the allegations related to Complainant's detail into the GS-6 MSA position (incidents 1, 4, 6, 10, 14, and 19), management officials stated that they needed coverage in that vacant position and asked for volunteers. When Complainant and E1 volunteered, they decided to rotate them, with E1 starting in December 2010, Complainant in January 2011, E1 rotating back in February 2011, and then Complainant in March 2011.4 S1 stated that Complainant objected to not being detailed first because she had worked in C&P longer than E1, but E1 was selected to go first, in accordance with the union procedures.
In response to incidents 2 and 11, S1 stated that Complainant was not required to work on the weekends but that she had volunteered to do so, and was paid overtime. S1 also stated that Complainant and another employee (E3) rotated weekends, until E3 passed away. S2 stated that when she started working in C&P in January 2011, Complainant was the only volunteer working weekends and that when she sent an email in February 2011, stating that she no longer wished to work on the weekends, they took her off the weekend schedule.
For Complainant's performance ratings, S1 stated that he rated Complainant Fully Successful in 2010 (incidents 3 and 12) because she had issues with customer service, which is a critical element of her position. He also stated that he did not consider Complainant as having performed her duties above or outside of her job description. While Complainant noted two comparators who were outside of her bases, and allegedly treated more favorably, S1 stated that he did not rate any employee above Fully Successful. As for Complainant's 2011 performance rating (incidents 9 and 29), S2 stated that while Complainant performed her duties well, she did not do anything that was above or beyond her assigned duties.
In regards to incidents 5 and 18, S2 stated that these were not additional duties, but were part of Complainant's performance plan. S2 also stated that the other GS-5 MSAs all perform the same duties as Complainant.
In response to Complainant's incidents 7 and 20, S2 stated that Complainant had exhausted her sick leave (SL), and requested use of AL. However, S2 stated that she did not have authority to approve AL, in lieu of SL. S2 also stated that Complainant was not charged AWOL, but instead was charged leave without pay. The CS stated that she denied Complainant's request for AL due to low staffing levels. While Complainant alleges that E2 was treated more favorably when she was allowed to use AL when she ran out of SL, the CS stated that E2 has been charged AWOL in the past, and received more severe disciplinary actions than Complainant.
In regards to Complainant's suspension (incidents 8 and 28), S2 stated that Complainant became loud and made a scene at the May 6, 2011, staff meeting. She also stated that some of the staff members asked to leave the meeting. After Complainant was issued the notice of proposed suspension, she met with the CS, and argued that S2 had solicited "false reports" from others who attended the meeting. However, the CS found their reports to be credible and sustained the suspension.
In an attempt to show that management's responses were pretext for discrimination, Complainant argued that her suspension was unwarranted because she did not commit the charged misconduct. In support of her argument, Complainant presented two witness statements. One witness (W1) stated that she was present but that she did not remember much else about the meeting, and the other witness (W2) stated that Complainant did not call S2 a liar and was not disruptive during the meeting.5 However, the Agency found that the CS decided to suspend Complainant after considering all the witness statements and finding that other statements were more credible and compelling.6 Accordingly, the Agency found that Complainant's argument was not sufficient to show pretext for discrimination or any discriminatory intent with respect to her suspension.
The Agency found that Complainant did not offer any other evidence of pretext for discrimination and concluded that Complainant had not shown that she was discriminated against based on race, color, or in reprisal for prior EEO activity with respects to incidents 1 through 9.
In addition to the responses discussed above, management officials provided legitimate, non-discriminatory reasons in regards to the additional incidents contained in Complainant's allegation that she was subject to a hostile work environment based on race, color, and in reprisal for prior EEO activity.
In response to incident 13, S3 denied that the CS made those statements to him; and that he told Complainant that the CS made these statements. The CS also denied making those statements. For incidents 15 and 16, the RCS denied the allegations and stated that he had never heard of Complainant's accusations until he was contacted by the EEO investigator. The RCS further stated that he did not even know who Complainant was and that he only knew her by name but had never worked with her.
In regards to incidents 17 and 27, S2 denied throwing anything at Complainant. While Complainant stated that W1 witnessed S2 throwing a list of missing files at Complainant on March 7, 2011, W1 stated that she did not recall witnessing this.
For incidents 21, 25, and 26, S2 stated that none of the GS-5 MSAs had an office or a private area, while the GS-6 MSAs worked in a fixed office, due to the nature of their work. S2 also stated that in May 2011, C&P was redesigned and reorganized to improve space utilization, and that everyone was affected. The CS stated that the GS-5 MSAs previously stored their personal items in the back office, but that it became too disruptive for those working in that office. Management initially provided file drawers, and then later installed lockers for personal storage. S2 also stated that Complainant was treated the same as the other GS-5 MSAs with respect to the changes in the work space.
In response to incident 22, S2 stated that Complainant never informed her that she was unable to take breaks on those days. She also noted that on April 11, 2011, Complainant was not assigned to the front desk and could take a break without waiting for someone to relieve her. S2 acknowledged that on April 15, and 18, 2011, three of the five GS-5 MSAs were out of the office and that it was possible that Complainant may not have been able to take breaks on time but Complainant did not call her for relief.
For incident 23, the CS stated that she was not aware of this particular claim but that it is almost impossible for one person to run the entire C&P unit alone. S2 added that while C&P was short-staffed during some of that period, Complainant was not the only person working. In regards to incident 24, S2 stated that Complainant was not treated any differently than other employees, who were all assigned such duties at the time. The CS stated that entering C-files is a part of Complainant's duties, but that closing accounts was not. The CS also stated that Complainant had a pattern of volunteering for duties and then complaining about doing what she volunteered to do, so she instructed S2 to not assign Complainant duties that were outside of her position description.
In analyzing Complainant's hostile work environment claim, the Agency excluded incidents 13, 15, 16, 18, and 11 from consideration because the events were unproven. Complainant provided no evidence, beyond her bare assertions that these incidents occurred. As for incidents 10, 14, 17, 19, 21, 22, 23, 24, 25, 26, and 27, the Agency found that the events did not occur in the manner described by Complainant and that she embellished, misrepresented or misinterpreted the events. However, the Agency found that Complainant never provided a reasonable belief that management's actions were based on any discriminatory intent. Additionally, the Agency found that Complainant had not shown that the conduct was sufficiently severe or pervasive to create an objectively hostile work environment because the complained of conduct was within the normal range of events which can be reasonably be expected to occur in a typical work place. Accordingly, Complainant did not show that management created a hostile work environment based on race, color, or in reprisal for prior EEO activity.
Complainant filed the instant appeal. The Agency requested that the Commission affirm its final decision finding that the Agency did not discriminate against or subject Complainant to a hostile work environment based on race, color, and in reprisal for prior EEO activity.
CONTENTIONS ON APPEAL
Complainant's appeal arguments are unclear as she seems to be marking arguments related to an appeal that was before the Merit Systems Protection Board (MSPB).7 Additionally, Complainant submitted information regarding events that occurred after the relevant period of alleged discrimination and harassment.
ANALYSIS AND FINDINGS
Standard of Review
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 . . . incident its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
We find that the Agency provided a full and articulate analysis in its final decision in support of its finding of no discrimination for Complainant's allegations that she was discriminated against in regards to incidents 1-9. As discussed above, the Agency articulated legitimate, non-discriminatory reasons for its actions and Complainant has not shown that the proffered reasons were pretext for discrimination. While the record contains what Complainant describes as "evidence" in support of her allegations, we find that her own notes are bare assertions, which are insufficient to prove pretext or that her managers' actions were discriminatory. Accordingly, we find that Complainant has not shown that the Agency discriminated against her based on race, color, or in reprisal for prior EEO activity.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at incident must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Incidents of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
In regards to Complainant's allegation that she was subject to a hostile work environment, we find that, even assuming, arguendo, that the events occurred as Complainant described and were unwanted, she has not shown that the conduct occurred because of her protected classes. We find that many of the instances of alleged harassment were related to Complainant's job duties and workplace conditions, which also applied to the other employees who held the same position. Additionally, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive resulting in a hostile work environment based on race, color, and in reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant has not shown that the Agency discriminated against or subjected her to a hostile work environment based on race, color, or in reprisal for prior EEO activity.
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 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
_5/11/16_________________
Date
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 S2 became Complainant's first-line supervisor in January 2011, when she came to C&P.
3 Complainant amended her complaint on May 23, June 6, September 29, and November 15, 2011.
4 Management officials stated that Complainant's dates regarding the detail rotations are incorrect. Complainant was not detailed into the position on November 14, 2010 because the position did not become vacant until after Thanksgiving in 2010.
5 W2 was Complainant's union representative.
6 One witness stated that she was embarrassed due to Complainant's "disrespect" toward S2, and another witness stated that Complainant was "very rude" and "made a LOUD out brisk [sic] toward her supervisor."
7 Previously, Complainant petitioned the Commission to review a decision by the MSPB. The Commission's decision in that matter was set forth in EEOC Petition No. 0320140070 (Feb. 4, 2015).
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