0120082613
12-02-2011
Teela D. Norris, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Teela D. Norris,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120082613
Hearing No. 570-2007-00804X
Agency No. 075100031
DECISION
On May 22, 2008, Complainant filed an appeal from the Agency’s April
22, 2008, 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.
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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Program Assistant, with the Agency’s Office of Administrative
Services, Office of the Chief Financial Officer and Assistant Secretary
for Administration, Office of the Secretary located in Washington, DC.
On January 20, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of disability (anxiety and
stress disorder) and in reprisal for prior protected EEO activity when:
1. Unlike other personnel, she is treated differently with respect to
time and attendance, constantly placed on Absent without Leave (AWOL),
and she is given a hard time about requesting leave and is "put through
the run around" in spite of submitting supporting documentation such as
doctors' notes to support her leave requests. Complainant specifically
cited incidents occurring in pay period 14 in Fiscal Year (FY) 2004,
pay period 16 in FY 2004, pay period 19 in FY 2004, pay period 1 in FY
2005, pay period 10 in FY 2005, and pay period 16 in FY 2005.
2. On July 12, 2006, the Acting Chief, Travel Management Division, Office
of Administrative Services (S1), alleged that Complainant had ''bad [time
and attendance] habits" and a lengthy history of AWOL and suspensions
and explained that he had made "arrangements" with his predecessor (S0).
S1 further told her that S0 had concerns with her time and attendance
and planned to have a meeting to discuss the matter the following week.
3. On August 4, 2006, S1 denied a leave request previously approved by DC.
4. On August 11, 2006, she received a memorandum entitled "Counseling
for AWOL on August 8, 2006."
5. On August 24, 2006, S1 removed various travel related duties from
her position, stating that she was "not proficient enough to perform
these tasks."
6. On September 22, 2006, S1 made it mandatory for staff to report
to duty on the weekend of September 23-24, 2006 or be charged AWOL.
On September 24, 2006, Complainant requested that S1 approve her absence
for that day. However, S1 inquired in great detail about requirements
that would prevent her from reporting for duty.
7. S1 placed her on AWOL on September 29, 2006.
8. On October 3, 2006, her Family and Medical Leave Act request was
denied, resulting in her being charged AWOL during the period of August
24 to September 19, 2006.
9. On October 6, 2006, she was issued a proposal to suspend without pay
for 10 days.
10. On October 11, 2006, she was placed on leave restriction.
11. On October 13, 2006, she was informed by S0 that her requests for
leave were not procedurally submitted and therefore, not approved.
12. S1 issued a memorandum entitled "Counseling for Failure to Follow
Procedures" which required her to obtain permission in order to leave
the office.
13. S1 placed her in AWOL status on October 25 through 27, 2006.
14. On October 31, 2006, S1 suggested that she "file a complaint with
EEO or any of the other resources available to [her], as [she] did with
[her] previous supervisor after he proposed a suspension for AWOL."
Complainant says that this message was forwarded to upper management,
in addition to several other persons within the Office of Human Resources
Management.
15. On January 12, 2007, she was given a Letter of Counseling alleging
that she had lost the travel documents of the Secretary of Commerce.
16. On January 24, 2007, S1 attempted to taint her new supervisor's
opinion of her.
17. On January 26, 2007, she was issued a suspension for seven calendar
days for being AWOL and for failing to follow leave procedures.
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 EEOC Administrative Judge (AJ).
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.
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. (November 9, 1999) (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”).
We assume for the purposes of this decision that Complainant established
a prima facie case of disability discrimination and reprisal. We also
find that management officials provide legitimate, non-discriminatory
explanations for their employment actions. The record supports the
finding that Complainant failed to follow established Agency procedures
with respect to requesting leave despite numerous attempts by management
officials to explain such procedures. In addition, several witnesses
corroborated the fact that Complainant had a history of time and
attendance problems.
We also agree with the Agency in concluding that the record is devoid of
evidence establishing discriminatory or retaliatory animus on the part of
any management official. We note that Complainant’s testimony amounted
to vague, uncorroborated general assertions. Moreover, despite being
given 30 days after receipt of the Report of Investigation to provide
a rebuttal statement, Complainant nevertheless failed to provide any
statement rebutting the Agency's stated explanation for its employment
actions as being a pretext to mask discriminatory animus.
CONCLUSION
Accordingly and based on a thorough review of the record, we AFFRIM the
Agency’s final decision.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 2, 2011
__________________
Date
1 We note that Complainant does not raise any assertions on appeal.
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01-2008-2613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013