0120162202
05-31-2018
Valorie M.,1 Complainant, v. Tina Ballard, Executive Director, U.S. Ability One Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valorie M.,1
Complainant,
v.
Tina Ballard,
Executive Director,
U.S. Ability One Commission,
Agency.
Appeal No. 0120162202
Hearing No. 570-215-00364X
Agency No. GSA-14-ALD-3
DECISION
On June 29, 2016, Complainant filed a premature appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 11, 2016, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Services Specialist, GSA-301-11. She was subsequently reassigned to the position of Compliance Specialist, GS-1801-11 at the Agency's Compliance and Review, Committee for Purchase From People Who are Blind or Severely Disability, Ability One Commission in Arlington, Virginia. Complainant was terminated from her position effective July 7, 2014.
On July 1, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment her on the bases of race (African-American), national origin (American), sex (female), religion (Baptist), color (Black), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. On October 3, 2012, a desk audit of Complainant's position revealed that she was performing higher graded duties. Rather than reclassifying the position, management removed the higher graded duties.
2. On October 22, 2012, Complainant was reassigned from her position after she complained about unethical behavior on the part of the Deputy Executive Director.
3. On May 15, 2013, Complainant received a counseling memo.
4. On November 26, 2013, Complainant received a reprimand.
5. On February 25, 2014, Complainant was told to take leave or report to work after she informed the Deputy Director of connectivity issues.
6. After Complainant filed a grievance against the Agency, on May 12, 2014, management assigned a Deciding Official who was not eligible to perform those responsibilities.
7. On May 30, 2014, Complainant was removed from participating in the telework program.
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). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision in favor of the Agency by summary judgment on June 21, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. On appeal, Complainant asserted that she has subsequently been subjected to unlawful retaliation when she was not selected for a new position with the Agency.
ANALYSIS AND FINDINGS
Amendment on Appeal
By letter dated December 3, 2016, Complainant asserted that she wished to amend her complaint to include a claim of retaliation when she was not selected for the position of Program Manager. The Commission finds that Complainant may not amend her complaint to add this claim for the first time on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000).
Dismissal of Claim (6)
We note that the AJ and the Agency addressed Complainant's claim of discrimination regarding the Agency's decision to assign a "Deciding Official" to render decisions on behalf of the Agency in response to her grievance. However, we find that such a claim raising concern with the Agency's designation of official for purposes of the grievance process are not properly before the Commission.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the grievance proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the grievance process. As such, we dismiss claim (6) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Summary Judgment
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
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).
As to claim (1), Complainant had asked for a desk audit. The HR Specialist (African-American, Black, American, female, unknown age, and no known EEO activity) indicated that Complainant was not correct in her allegation that she was performing higher-graded work. She conducted the desk audit and she did not find that any higher-level duties to support higher-level work in the Program Services Specialist position. The HR Specialist noted that the position description was improperly classified in the 0301 series and should have been reclassified in a different series and at a lower grade. She recommended that Complainant's position should have been a lower grade in the Support Service Administration Series.
In claim (2), Complainant indicated that she was reassigned for complaining about alleged unethical behavior on the part of the Deputy Executive Director's (Caucasian, White, American, Catholic, female, 44 years old). The HR Specialist indicated that Complainant had made a request for a reassignment in 2012. Further, the Deputy Executive Director averred that Complainant was reassigned in order to rebalance the current staff resources in light of the continued budget cycle and in order to focus on the Agency's Compliance and Effective Stewardship goals. The Chief of Staff (Chief, African-American, Black, American, Baptist, male, 54 years old) that the Deputy Executive Director informed him that Complainant was moved to a position of more critical need and in support of her request to be reassigned.
Complainant received the counseling memo as raised in claim (3) following an email she sent to the Agency's senior staff and others outside of the Agency. The Deputy Executive Director averred that Complainant stated that "management lie" and that "you should be ashamed of the way you do business as a federal agency." She had previously cautioned Complainant not to send insubordinate or disrespectful email messages. As such, management issued Complainant the counseling memo.
On November 26, 2013, Complainant was issued a reprimand as alleged in claim (4). The Deputy Director (Caucasian, White, American, Roman Catholic, female 47 years old) stated that she gave Complainant the reprimand based on her failure to follow supervisory instructions. The Deputy Director indicated that Complainant was absent without leave while in a telework status. She indicated that Complainant failed to answer email messages for several hours or to participate in a scheduled teleconference. The reprimand also covered Complainant's failure to follow directions because she did not bring her laptop to work or seek assistance from the network support staff in a timely manner as directed by the Deputy Director.
Regarding claim (5), Complainant stated that on February 21, 2014, her modem had been replaced and she learned later that the Agency's Virtual Private Network (VPN) did not support the model of her modem. The Deputy Director indicated that if Complainant was having connectivity issues then she was unable to perform her duties while teleworking. As such, based on this inability to perform her duties, management instructed Complainant to either take leave or report to the office.
Finally, in claim (7), Complainant alleged that she was subjected to discrimination when she was removed from participating in the telework program. Management witnesses indicated that Complainant was having too many connectivity issues throughout her telework status. The Deputy Director noted that Complainant experienced consistent problems with her internet connection from home and that Complainant was not able to perform her duties while teleworking. She also indicated that the problems were occurring back in November 2013 and that the Agency provided Complainant with a Letter of Clarification stating what was required of Complainant while teleworking. The Deputy Executive Director recalled that the Deputy Director informed her that Complainant was having compatibility issues with her cable modem and the Agency's VPN which precluded her from performing her duties. She advised the Deputy Director to instruct Complainant that she would no longer report to work via telework.
Based upon our review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to show that the Agency's reasons were pretext for discrimination. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that she was subjected to disparate treatment based on her race, color, sex, national origin, religion, age, and/or prior EEO activity.
Harassment
Complainant also asserted that the events raised above constituted a hostile work environment. 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 race, color, sex, religion, national origin, age and/or retaliatory animus. 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 protected bases or prior protected activity played any role whatsoever in the decisions regarding the desk audit, her reassignment, the various disciplinary actions, and events related to her removal from the telework program. Moreover, the responsible management officials provided a legitimate, non-discriminatory explanations for alleged incidents as indicated above. In sum, Complainant failed to prove that her race, color, national origin, sex, religion, age, or retaliatory animus 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 order adopting the AJ's 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
May 31, 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 When Complainant filed her appeal, it was premature. However, the Agency subsequently issued its timely final order. Where a premature appeal has been filed and the Agency subsequently issues a final action while the appeal remains pending, we have held that the issuance of the decision cured the defect and made the appeal ripe for adjudication. See Franchesca V. v. Dep't of the Treasury, EEOC Appeal No. 0120150620 (March 24, 2017); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120712 (June 18, 2014).
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