0120140347
05-11-2016
Trina C.,1 Complainant, v. Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trina C.,1
Complainant,
v.
Davita Vance-Cooks,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120140347
Hearing No. 570-2011-00623X
Agency Nos. 10-28, 10-35, 11-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 30, 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. For the reasons stated below, we AFFIRM the Agency's Final Decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination based on her sex.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to discrimination based on her sex when she received a low appraisal rating, was charged Leave Without Pay (LWOP) and suspended, and when she did not receive an award.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bookbinder at the Agency's Binding Division, Plant Operations in Washington, D.C. Complainant filed three separate complaints which were consolidated by the Agency. On April 14, 2010, June 11, 2010, and October 15, 2010, Complainant filed formal complaints alleging that the Agency discriminated against her on the basis of sex (female) when:
Complaint No. 10-28:
- On February 24, 2010, she received a Summary Rating of "Meets Expectations" on her 2009 annual performance appraisal. Complainant maintained that her supervisor failed to provide her with a copy of her performance plan, which impacted her ability to review and follow the proper guidelines in submitting documentation to support her performance, which subsequently resulted in the denial of a cash award.
Complaint No. 10-35:
- She was (1) charged with two and one half hours of leave without pay (LWOP) on March 12, 2010, after leaving work due to an altercation with coworkers, and (2) subsequently was issued a disciplinary action (5-day suspension) for creating a disturbance and unprofessional behavior.
Complaint No. 11-06:
- On May 24, 2010, she learned that she had not received the same monetary award as other Bookbinders who had assisted with training the apprentices. She alleged she was the only female not to receive an award.
Following an investigation by the Agency, Complainant requested a hearing before an Equal Employment Opportunity Commission's Administrative Judge (AJ). It was determined that Complainant's request was untimely so the case was returned to the Agency for a FAD. The FAD found that Complainant failed to establish that she was subjected to discrimination on the basis of sex. Specifically, the FAD found that assuming Complainant established a prima facie case of sex discrimination with regard to all claims, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to Complaint No. 10-28, the Agency explained that, contrary to Complainant's assertions, performance plans were released from Human Capital and Complainant received hers at the same time as the rest of the staff. Based on Complainant's performance she received an overall score that warranted a rating of Meets Expectations. She along with a male Bookbinder received a Meets Expectations rating. The Agency noted that the only bookbinder that received an outstanding rating was a female employee so Complainant's argument that sex was a factor is not supported by the evidence.
In Complaint No. 10-35, Complainant argued that male coworkers had engaged in provocative behavior including cursing at other employees and they had not been disciplined. The Agency explained that Complainant was disciplined because on March 12, 2010, she yelled profanities toward a co-worker. Complainant was issued LWOP when she was charged with unprofessional behavior when her supervisor tried to calm her down and she walked off the job site rather than talking to him. Management indicated that Complainant's past disciplinary record was considered with respect to the issuance of the proposed 5-day suspension. Complainant's past discipline included an incident in February 2009, where she was given a verbal warning for creating a disturbance in the workplace. Management indicated that based on the consideration of Complainant's mitigating factors, it was decided that Complainant would be given a 5-day "paper suspension," which meant that she would not lose any pay but the suspension could be used in any future disciplinary actions. The FAD maintained that Complainant's sex had nothing to do with the discipline issued to her. Complainant was one of four bookbinders who received discipline during this time period and the other three employees disciplined during this time period were all male.
With respect to Complaint No. 11-06, the Agency explained that while Complainant did assist with the training of apprentices and had been nominated for a monetary award, she did not receive an award because she had been subjected to discipline within the last 12 months which made her ineligible to receive a cash award. Complainant was told however that she would be considered for an award after 12 months had elapsed from her last discipline, assuming she continued to assist the apprentices.
The Agency argued that Complainant did not demonstrate that its articulated legitimate, nondiscriminatory reasons were pretext for sex discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her case was mishandled by the Agency and the administrative judge as she was required to go through mediation twice. Complainant also maintains that her complaints were not promptly and thoroughly investigated, and asserts that her complaints have led to more harassment, a change in shifts, the loss of a position, and suspensions without pay. She argues that her EEO activity has had a "domino effect" on her career. Finally, she discussed in some detail the affect the Agency's actions have had on her and her husband.
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 Chap. 9, � VI. (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 in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant received a Meets Expectations on her performance appraisal because it was an accurate indication of her performance. She was issued a suspension because of her unprofessional behavior in the workplace and she was charged with leave without pay because she stormed off and left the Agency rather than speak to her supervisor. We note that contrary to Complainant's argument the record reveals that the male employees cited by Complainant were in fact also disciplined for their unprofessional behavior. Finally, she did not receive a cash award because she was not eligible as she had received disciplinary action against her within a 12-month period. The eligibility requirements for an award were based on the Agency's policies and procedures and the decision to deny Complainant an award was not made by Complainant's supervisor. We find that Complainant did not offer any evidence which demonstrated that the Agency's reasons were pretext for discrimination or that discriminatory animus toward her gender was involved in these decisions.
Further, with respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements she has provide no evidence which suggests that she was subjected to discrimination on the basis of her sex. With regard to Complainant's allegations that she is currently being subjected to harassment and discrimination she is advised to contact the Agency's EEO office. Accordingly, we AFFIRM the Agency's FAD because the preponderance of the evidence of record does not establish that discrimination occurred.
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.
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