0120162422
04-27-2018
Sherley P.,1 Complainant, v. Timothy O. Horne, Acting Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherley P.,1
Complainant,
v.
Timothy O. Horne,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120162422
Agency No. GSA-15-R6-P-0122
DECISION
On July 15, 2016, 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 June 15, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 had worked as an Administrative Specialist, GS-0301-9 at the Agency's St. Louis West Field Office in St. Louis, Missouri.
On October 15, 2015, Complainant filed an EEO complaint alleging:
1. That the Agency subjected Complainant to harassment on the basis of age (62 years old) when:
a. On November 7, 2014, Complainant's job description was changed from a Budget Analyst to an Administrative Assistant.
b. On March 8, 2015, Complainant was notified through an SF-50 that her scope of work had changed.
c. On May 14, 2015, Complainant was placed on a Performance Assistance Plan (PAP) after she informed management that she was not going to retire.
d. On May 19, 2015, Complainant was told that a co-worker could not assist her in completing a credit card statement.
e. On July 10, 2015, Complainant received an email from her supervisor (Supervisor, 36 years old) stating that she would be the only employee to remain under the Supervisor's supervision even though the Supervisor would be on detail to the Central Office.
2. That the Agency subjected Complainant to discrimination on the basis of age when on July 10, 2015, Complainant received an email stating that she would be the only employee to remain under the Supervisor's supervision even though the Supervisor would be on detail to the Central Office.
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 (AJ). In accordance with Complainant's request, 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 age-based harassment or discrimination as alleged.
This appeal followed. Complainant asserted on appeal that she was not alleging a frivolous claim of harassment. She believed the Supervisor's actions were egregious. Complainant indicated that, in March 2015, she was called into an impromptu meeting with the Director (36 years old) and the Supervisor. She had been working on some excessing of government property when she was told that she was not eligible for a job that had been announced. She was previously told she could apply. Complainant then asked if there was any chance of promotion within the Agency. Complainant stated that she might retire and the Supervisor allegedly thought it was a great idea. She claimed that the Supervisor and the Director suggested getting specifics from Personnel as what was needed to begin the retirement process.
After she informed management that she was not ready to retire, Complainant indicated that things went "down-hill from there." She was placed on the PAP for the first time in her career. She argued that she had previously received nothing less than a "Successful" rating and had received monetary awards for her performance. Since her decision to continue working, she claimed that every day in the office became more and more miserable to the point it was affecting her health. She indicated that the stress and humiliation were too much to handle. Complainant has subsequently retired noting that coworkers have been worried for her welfare due to the illegal actions she has endured at the hands of the Supervisor and the Director. Therefore, she requested that the Commission reverse the Agency's final decision and find that she was subjected to harassment and discrimination based on age.
The Agency responded by stating that Complainant failed to support her claims of discrimination and harassment. Accordingly, the Agency asked that the Commission affirm its final decision.
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 . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Although Complainant asserted that the event in claim (1)(a) occurred in November 2014, a review of the record shows that Complainant had been reassigned from the budget analyst position to the Administrative Specialist position on February 23, 2014. The Supervisor provided Complainant with the position description on May 28, 2014, and indicated that there had been no change to the position since that date. The Supervisor averred that due to an Agency reorganization that began in 2013, a Central Office of finance was created replacing the regional finance offices. Budget analysts were to be reassigned to the Central Office. The Supervisor noted that Complainant expressed a desire to remain in the regional office. Therefore, to avoid reassigning Complainant to the new Central Office, the Supervisor reassigned Complainant to the Administrative Specialist position.
In claim (1)(b), Complainant asserted that she was issued an SF-50 changing the scope of her work. The Supervisor denied this claim. A review of the record indicates that on March 8, 2015, Complainant was issued a new SF-50 stating that a "realignment" had occurred with her position. The realignment only changed the location of Complainant's position adding the Office of Deputy Regional Commission to her organization.
On May 14, 2015, Complainant was placed on a PAP as alleged in claim (1)(c). The Supervisor indicated that, in May 2014, she began meeting with Complainant regarding her timely completion of her work and her quality of work. She noted that although Complainant's position description had changed, some of the duties had not changed such as serving as the credit card holder for the field office and handling disposal of personal property for the office. The Supervisor and/or the Director would meet with Complainant every other week for several months. They tracked her projects and assignments and would establish routine deadlines. Management noted that Complainant had an approximate error rate of 25% and they reduced it to 10%. However, they still saw issues and errors on her monthly statements. Based on their review, Complainant was issued the PAP noting that she was only partially meeting performance expectations for Level 2 and was not meeting the performance expectations for Level 3. The Supervisor wanted to provide Complainant with an opportunity to improve her performance to the "successful" level. The Supervisor noted in her affidavit that, during the PAP meeting, it was Complainant who claimed that the PAP was issued because of her age. However, the Supervisor stated that she was not picking on Complainant but was addressing Complainant's performance issues and nothing more. During conversations regarding Complainant's job performance, she asked whether she could receive assistance related to reconciling credit card statements. The Supervisor denied Complainant's request as alleged in claim (1)(d). She responded that Complainant needed to do the work herself especially since this was her duty and connected to her performance appraisal.
Finally, as to claim (1)(e) and (2), Complainant alleged she was subjected to discrimination when she received an email from the Supervisor stating that she would be the only employee to remain under the Supervisor's supervision even though the Supervisor would be on detail to the Central Office. The Supervisor denied Complainant's characterization of the email. In response, the Supervisor indicated that Complainant was only to send the "Credit Card Statements" to the Supervisor once they are reconciled. She indicated that while she was on detail, the Supervisor remained the Approving Official of record for credit card reconciliation. As such, she needed Complainant to send the credit card statements to her even though the Supervisor was on detail. Based on our review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions.
We now turn to Complainant to establish that the Agency's actions were pretext for age-based discrimination. She argued that the Agency's actions were based on her age. However, Complainant did not provide evidence to support her assertion that the actions were taken because of her age. As such, we cannot find that Complainant has established that she was subjected to age-based discrimination.
Harassment
Complainant also alleged that the events listed above were taken by the Agency in order to create a hostile work environment. Complainant argued that the Supervisor and the Director were taking actions which made her job difficult in hopes that she would retire. She felt like she was being singled out and, as a result, she became more depressed and unhappy. Complainant did retire in December 2015.
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's age played any role whatsoever in the decisions involving her assignment, her position description, the PAP, her duties, and reporting to the Supervisor. Moreover, the Director and the Supervisor provided legitimate, non-discriminatory explanations for these events. In sum, Complainant failed to prove that her age played any role in the incidents she proffered as evidence of her harassment claim.
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 no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
April 27, 2018
__________________
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
0120162422
7
0120162422