0120141572
06-08-2016
Zetta B.,1 Complainant, v. Admiral Michael S. Rogers, Director, National Security Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zetta B.,1
Complainant,
v.
Admiral Michael S. Rogers,
Director,
National Security Agency,
Agency.
Appeal No. 0120141572
Hearing No. 531-2012-00215X
Agency No. 01017
DECISION
On March 11, 2014, Complainant filed an appeal from the Agency's January 6, 2014, final order 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. 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 order.
ISSUES PRESENTED
Whether the AJ properly issued a decision without holding a hearing; whether the Agency discriminated against Complainant on the basis of age (45) when:
1. On December 1, 2000, it ordered Complainant to report to Fort Meade, rather than allow her to continue working in northern Virginia;
2. On January 18, 2001, it failed to provide Complainant with a reasonable accommodation, and ordered her to report to Fort Meade; and
3. On October 11, 2000, it selected another employee to perform the same or similar functions that Complainant performed at the northern Virginia location;
and whether the Agency discriminated against Complainant basis of age (45) and age-based reprisal when:
4. It subjected her to harassment, following her January 2001 contact with an EEO counselor; and
5. On November 1, 2001, it removed her from the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Officer at the Agency's Headquarters (HQ) in Fort Meade, Maryland. In August 1990, Complainant was selected for an external assignment with the Department of Defense (DoD), and began reporting to work at the Pentagon, in northern Virginia. In 1999, the then Agency Director ordered that all Agency employees who were on external assignments which did not directly support the Agency's mission be redirected to HQ, in an effort to preserve Agency resources. During this almost ten year period that Complainant served this assignment, she had very little contact with the Agency, and had not received updated training. The then Director, Office of Security (DOS1), met with the Chief of DoD Security and determined that Complainant was involved in a very sensitive program, and that she did not have the current skills or training for the position.
The Agency's Director of Operations decided to discontinue the Agency's support of the assignment because it did not benefit the Agency, and recalled Complainant to HQ. On February 2, 2000, the Deputy Director of Operations notified Complainant's DoD manager (DM) that she was being recalled to the Agency's HQ. The DM responded that the elimination of the position would have major impact on their program operations, and that the DoD would reimburse the Agency for the cost of the position. The Agency decided to maintain the position, on a continued and rotational basis, contingent on reimbursement from the DoD. The Agency decided to increase the responsibilities for the position, to include interactions with a high level DoD official, which was something that Complainant did not do. The Agency offered the position with a temporary promotion to the GS-14 level for three years because of the additional responsibilities, and due to the fact the selectee would have no opportunity for a promotion within the Agency during that time. Complainant was allowed to remain at the Pentagon until a replacement could be identified. On October 11, 2000, a selectee (S1) (41 years old) was offered, and accepted the position. Another selectee (S2) (41 years old) was initially offered the position, but she declined.
On December 1, 2000, the new Director, Office of Security (DOS2) directed Complainant to report to HQ no later than December 18, 2000. In the DOS2's memo, he stated that Complainant was being recalled in light of the review of external assignments; the extended period of time of Complainant's assignment;2 and for Complainant's career development.
On December 8, 2000, Complainant submitted a request for a reasonable accommodation to remain in her current position at the Pentagon because her medical condition affected her ability to commute to HQ. On January 18, 2001, the DOS2 faxed his response to Complainant's request, informing Complainant that they were unable to determine that she was a qualified individual with a disability based on the medical documentation provided. Additionally, the DOS2 stated that her request was not reasonable because it was due to Complainant's commute, rather than her job duties. The DOS2 stated that other accommodations could be explored, including relocation expenses or miscellaneous expenses related to buying or selling Complainant's residence.
The DOS2 later agreed to extend Complainant's return date to February 9, 2001. On February 9, 2001, Complainant spoke with the Chief of Staff, Office of Security (COS), and informed her that she would not be reporting to HQ, pursuant to her doctor's advice. Also on February 9, 2001, Complainant faxed a request for advanced sick leave. The Agency doctor (DR1) stated that Complainant's physician's note was insufficient, and that he could not recommend approval until he received additional information. Complainant submitted another request for advanced sick leave on February 20, 2001. DR1 again determined that the medical information provided was too general, and Complainant's request was denied. On February 21, 2001, the Agency requested permission for DR1 to speak directly with Complainant's physician (DR2) because the medical information provided never indicated that Complainant was unable to perform her duties because of her medical condition. On March 23, 2001, the Agency's Chief, Human Resources (CHR) informed Complainant that the Agency could not make a determination on her requests for advanced sick leave and leave under the Family and Medical Leave Act (FMLA) until Complainant provided additional information, including how her medical condition affected her ability to perform her job duties.
On March 28, 2001, Complainant spoke with the DOS2, who directed her to report to work the next day. From February 13, 2001, through March 28, 2001, Complainant was on annual leave. On April 4, 2001, the DOS2 requested that that the Agency identify any open positions in northern Virginia for Complainant, but no vacancies were found.
On April 9, 2001, Complainant's supervisor (S1) notified Complainant that she had been absent without leave (AWOL) since March 29, 2001, when she had exhausted her available leave. S1 instructed Complainant to contact S1, and return her Agency credentials. The Agency attempted to locate Complainant when she did not report to work or return phone calls. The Agency sent agents to talk to Complainant's family members in New Jersey.
On April 17, 2001, Complainant faxed another statement from DR2, who noted Complainant's difficulties in driving long distances, but did not address the questions posed in the March 23, 2001, letter sent by CHR. On April 24, 2001, CHR sent Complainant a letter informing her that she could not invoke FMLA due to insufficient medical information. Also on April 24, 2001, the Chief, Employee Relations (CER) sent Complainant a notice of proposed removal for refusal to accept a directed reassignment, which she received on May 9, 2001. Complainant presented an oral reply to the proposal on July 31, 2001. On October 23, 2001, the Agency sustained Complainant's removal, effective November 1, 2001.3
On April 24, 2001, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (fibromyalgia) and sex (female). On October 31, 2001, Complainant submitted an affidavit noting that she also alleged discrimination on basis of age. 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 requested a hearing, but a settlement agreement was reached prior to the hearing in December 2004. The settlement agreement provided Complainant with: (1) retroactive promotion to a GS-13, Step 4, with effective step increases from June 21, 1998, through the date of her disability retirement; (2) back pay, including interest, from June 21, 1998, through the date of her disability retirement; and (3) a $5,000 lump sum payment. The settlement agreement referenced Complainant's Title VII and disability discrimination claims, but did not include Complainant's age discrimination claims or her claim that she was discriminated against when she was terminated.
On March 7, 2007, Complainant alleged that the Agency breached the settlement agreement when the Agency failed to: (1) provide her back-pay, with applicable interest and benefits; (2) contribute to her Thrift Savings Plan; and (3) promote her to a GS-14. On April 17, 2007, the Agency issued a decision finding no breach of the settlement agreement because the Agency sent Complainant checks for the payments, which she did not cash. Additionally, the Agency found that while there were discussions about promoting Complainant to a GS-14, the settlement provided for a promotion to the GS-13 level.
Complainant appealed the Agency's decision to the Commission's Office of Federal Operations (OFO) arguing that the settlement agreement should be voided because it did not comply with the Older Workers' Benefit Protection Act (OWBPA). On July 31, 2008, OFO issued a decision finding, among other things, that the OWBPA did not apply because Complainant's underlying complaint did not include an age discrimination claim.4
Complainant submitted requests for reconsideration, and on February 27, 2012, the Commission found that Complainant tried to amend her EEO complaint three times, but that the Agency failed to amend her claims.5 The Commission ordered the Agency to amend Complainant's complaint to include her age discrimination claims, and a claim of discriminatory termination. The Commission voided the settlement agreement with respect only to Complainant's age discrimination claims, and remanded the age based claims for a hearing. On May 18, 2012, the AJ remanded the case back to the Agency to conduct a supplemental investigation on the following claims that: the Agency discriminated against Complainant on the basis of age (45) when:
1. On December 1, 2000, it ordered her to report to Fort Meade, rather than allow her to continue working in northern Virginia;
2. On January 18, 2001, it failed to provide her with a reasonable accommodation, and ordered her to report to Fort Meade; and
3. On October 11, 2000, it selected another employee to perform the same or similar functions that Complainant performed at the northern Virginia location;
and the Agency discriminated against her on the basis of age (45) and age-based reprisal when:
4. It subjected her to harassment, following her January 2001 contact with an EEO counselor; and
5. On November 1, 2001, it removed her from the Agency.
Over Complainant's objections, the AJ assigned to the case granted the Agency's December 6, 2012, motion for a decision without a hearing, and issued a decision without a hearing on December 18, 2013. As an initial matter, the AJ determined that there were no material facts in dispute.
With regards to Complainant's assertion that the DOS2 told her to resign, citing the December 1, 2000 memorandum as evidence, the AJ found that Complainant misconstrued the memorandum because the DOS2 did not write that it was time to terminate Complainant, but that the DOS2 stated that it was "time to terminate [Complainant's] present assignment" and return her to HQ. The AJ also found that the record contained other correspondences showing that the DOS2 wanted Complainant to return to HQ, not resign.
For Complainant's age-based reprisal claims, the AJ found that Complainant did not raise her age claim until October 30, 2001, and that all the actions, aside from her removal which became effective only two days later, had occurred prior to the Agency learning of her age-based claim. Accordingly, the AJ determined that there was no basis to find age-based reprisal in this case.
In regards to claim 1, the AJ found that the Agency had good reason to recall Complainant back to HQ because she had served on the external assignment for almost ten years, and that these assignments were not permanent. While Complainant argued that she was told this was a permanent assignment, the AJ found that neither the DOS1 nor the DOS2 stated this to Complainant, so she did not have a reasonable basis to believe this assignment was permanent. Additionally, the AJ found that Complainant had not received relevant training during the time she was on this assignment. The AJ held that the order for Complainant to return to HQ was valid, and that there was no evidence that Complainant's age was a basis for this decision.
For claim 2, the AJ found that Complainant had not shown that she was disparately treated when the Agency failed to provide her with a reasonable accommodation due to her age. Specifically, the AJ determined that Complainant had not identified an employee who had issues with his or her commute, and was younger than Complainant, whom the Agency accommodated. The AJ determined that under the ADEA, there is no requirement that an employee be provided with a reasonable accommodation, and analyzed Complainant's claim of failure to accommodate as a disparate treatment claim. Since Complainant's disability claims were already addressed in the settlement agreement with the Agency, the AJ did not analyze the failure to accommodate claim under the Rehabilitation Act of 1973 (Rehabilitation Act).
For claim 3, the AJ found that since S1 and S2 were not significantly younger than Complainant, there was no inference of age discrimination. The AJ also found that it was reasonable to assign another employee for this assignment because it was rotational, and not permanent. The AJ determined that the position being offered at a higher grade level was not evidence of age discrimination because the additional higher level responsibilities and the lack of promotion possibility reasonably justified the temporary promotion.
In support of claim 4, Complainant claimed that the Agency harassed her when it contacted her family during the time she was recorded as AWOL; denied her requests for leave; and failed to provide her with a reasonable accommodation. The AJ found that it was reasonable for the Agency attempt to locate Complainant because she was not reporting to HQ, and the Agency needed to obtain her credentials. The AJ determined that the AWOL charge was moot because the Agency eventually changed the AWOL to leave. The AJ also found that Complainant was not entitled to advanced leave because one of the requirements of obtaining advanced leave is a reasonable expectation that an employee will return to work in a productive capacity, and Complainant was not likely to return to work because she stated that she would not report to HQ. In regards to the failure to accommodate, the AJ determined that the Agency provided a reasonable explanation for denying her accommodation request because it was based on her commute, and not on her ability to perform her job. The AJ concluded that Complainant had not shown that the Agency harassed her on the basis of age.
For claim 5, the AJ found that the Agency directed Complainant to report to HQ numerous times, and that she refused to report in. While the AJ noted that Complainant's refusal to report in was on the advice of her doctor, he found that Complainant could have moved closer to HQ and made no efforts to do so. The AJ also found that Complainant did not provide evidence that anyone else in similar circumstances was treated more favorably because of age, and was not terminated. The AJ concluded that Complainant did not provide any evidence showing pretext for discrimination, and that even when viewing the evidence in the light most favorable to Complainant, she had not shown that the Agency discriminated against her on the basis of age.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted her brief in support of her appeal on June 2, 2014. The Agency filed an opposition brief on August 1, 2014, requesting that the Commission affirm its final order. Complainant then submitted a response to the Agency's opposition on September 15, 2014.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that AJ erred because he based his decision on factual errors when he was misled by the Agency. She also alleges that she can show direct evidence of age discrimination by the DOS2. Additionally, Complainant argues that the Agency did not articulate a legitimate, non-discriminatory reason for its actions. Complainant also argues that the Agency did not comply with the AJ's April 29, 2013 orders concerning discovery and the additional investigation, and requests a default judgment against the Agency.
ANALYSIS AND FINDINGS
At the outset, we note that Complainant's September 15, 2014, Response Statement was submitted beyond the applicable limitations period set forth in the Commission's regulations. Thus, we will not consider this statement or the documents accompanying this statement on appeal.
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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 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 the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
On appeal, Complainant argues that the AJ erred because he based his decisions on factual errors when the Agency misled him. However, Complainant did not specify which facts were erroneous. At most, Complainant alleged that those in the Office of Security had no first-hand knowledge and that their statements were not supported by evidence. However, Complainant has not identified what facts she is referring to, nor has she shown any evidence that material facts are in dispute. As such, we find that the AJ did not err when issuing a decision without a hearing because there are no material facts in genuine dispute.
Disparate Treatment (Age Discrimination)
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). The federal sector prohibition against age discrimination requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." 29 U.S.C. � 633a(a).
Direct evidence is that evidence which, if believed, "will prove the particular fact in question without reliance upon inference or presumption...." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). Direct evidence of discrimination may include any action, or any written or verbal policy or statement made by an agency official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. See Jaakkola v Pep't of Commerce, EEOC Req. No. 05950390 (Aug. 29, 1996); Cafaro v. Dep't of the Treasury, EEOC Request No. 05920480 (Aug. 27, 1992). For example, a statement such as "Fire her, she's too old" would be direct evidence of age discrimination. Id. Evidence attacking an employer's explanation for its actions is not direct evidence, since such evidence does not prove, by itself, an employer's motivation. Caldwell v. Dep't of Veterans Affairs, EEOC Request No. 05920018 (March 12, 1992), citing Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2nd Cir. 1989). The Commission has found direct evidence of discrimination, where there was testimony by more than one witness that a supervisor made harsh, derogatory comments about the race of complainant and others, and that this discrimination contributed to the challenged employment decision. Winnie v. Federal Deposit Insurance Corp., EEOC Request No. 05890969 (June 28, 1989).
Where there is an absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves v Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the McDonnell Douglas analysis to an ADEA claim). Under this analytic framework, 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).
As an initial matter, we note that Complainant's claim that the Agency discriminated against her when it failed to provide her with a reasonable accommodation is properly analyzed under the Rehabilitation Act, and not the ADEA. We agree with the AJ, however, that Complainant's claims under the Rehabilitation Act were settled under the previous settlement agreement with the Agency. Accordingly, we will not address Complainant's discrimination claim of failure to provide a reasonable accommodation in this decision.
Additionally, Complainant argues that a default judgment against the Agency is appropriate because it did not obtain affidavits from all original witnesses as ordered by the AJ. Specifically, the Agency did not obtain an affidavit from DM, and Complainant has now provided a statement from him, dated May 22, 2014. However, we note that the AJ's April 29, 2013, Corrected Second Memorandum and Order Compelling Discovery and Additional Investigation specified which individuals the Agency needed to obtain additional affidavits from, and it did not order the Agency to obtain an affidavit from DM. As such, we find that the Agency did not fail to comply with the AJ's order, and default judgment is not appropriate. Additionally, as a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A.3 (Aug. 5, 2015). Since the AJ determined that a statement from DM was not necessary, we will not consider his statement as evidence for the purposes of this appeal.
On appeal, Complainant alleges that she can show direct evidence of age discrimination. Specifically, she alleges that the DOS2 repeatedly told her to resign because of her age. However, we agree with the AJ that Complainant has not provided any evidence that the DOS2 made these statements.6 Additionally, Complainant argues that her EEO counselor documented that the DOS2 stated that Complainant was on leave trying to decide if she was going to report in to HQ or resign; and that the DOS2 informed her that S1 was "chomping at the bit to take [her] job." Even assuming that the DOS2 made these two statements, we do not find this to be direct evidence of age discrimination because the DOS2 did not make any reference to Complainant's age, or anyone's age. Since Complainant has not shown direct evidence of age discrimination, we will turn to a McDonnell Douglas analysis for her age discrimination claims.
Assuming, arguendo, that Complainant established a prima facie case discrimination based on age and age-based reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency recalled Complainant from her DoD assignment because she had served on the external assignment for approximately ten years, which is much longer than the typical external assignment of four years. The Agency provided this opportunity to another employee, who had additional training for the skills needed for the position, which Complainant had not obtained while she was on the external assignment. Complainant argues that she was the best qualified person for this position; however, we find that the Agency had other reasons for recalling Complainant back to HQ. The DOS2 stated that Complainant had not received any updated training or career development counseling while she was on assignment, and that it was time to bring her back for career development purposes.
When Complainant did not report to HQ, the Agency regarded her as AWOL because she was not on any approved leave, and the DOS2 stated that Complainant would not return phone calls. Once the Agency determined that Complainant was AWOL, it followed its policy and attempted to locate her; this included contacting her family members. The DOS2 stated that after not hearing from Complainant in days, agents were sent to her parents' house in New Jersey, where her car was seen parked outside.
The Agency removed Complainant after determining that she did not report into HQ, despite being instructed repeatedly. On appeal, Complainant alleges that the Merit Systems Protection Board (MSPB) issued a decision that "eliminated Agency documented Reason for Removal 'Failure to report to directed assignment.'" However, we note that the record does not contain a copy of the MSPB decision, and Complainant's assertion is not supported by any evidence in the record.7
While Complainant alleges that the Agency did not provide legitimate, non-discriminatory reasons for its actions, we find that it did, as discussed above. We also find that Complainant did not provide any evidence showing that the Agency's proffered legitimate, non-discriminatory reasons were pretext for discrimination. On appeal, Complainant made bare assertions that the DOS2 discriminated against her based on her age, which are insufficient to prove pretext or that the DOS2's actions were discriminatory. Accordingly, we find that Complainant has not shown that the Agency discriminated against her based on age or age-based reprisal when it directed her to report to HQ; selected a younger employee for the DoD assignment; and removed her.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of 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, 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 Complainant has set forth an actionable claim of harassment, the conduct at issue 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 Issues 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 Complainant's case, some of the alleged harassing conduct includes:
1. The DOS2 faxed the denial letter of her reasonable accommodation request to her at a contractor facility, which was received in the presence of several contractors;
2. The DOS2 stated to Complainant that she should not have called an official in the Agency's Director's office;
3. The Agency "harassed, threatened, and harmed" her family members;
4. The Agency denied her requests for advanced leave;
5. The Agency denied her requests for FMLA leave;
6. The DOS2 denied her request for reasonable accommodation;
7. The Agency charged her with AWOL;
8. The DOS2 had security personnel call and visit her home; and
9. Agency officials "slandered" her to her neighbors.
We find that, even assuming, arguendo, that the incidents occurred as Complainant described and were unwanted, she has not shown that the conduct occurred because of her age or age-based reprisal. Also, the Agency provided legitimate, non-discriminatory reasons for the alleged harassing conduct. The Agency denied Complainant's request for reasonable accommodation, advanced sick leave, and FMLA leave due to insufficient medical information. The record shows that the Agency interacted with Complainant, and informed her that she needed to provide additional medical information to support her requests, which she did not do. When Complainant exhausted her available leave, she was placed in an AWOL status. The Agency contacted Complainant's family members and neighbors when they could not reach her, via phone or in person. The DOS2 denied incident 3, and in regards to incident 1, he stated that he faxed Complainant the letter to the number that she provided. Additionally, we find that Complainant has not shown that the conduct had the purpose or effect of creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the Agency discriminated against her when it subject her to harassment based on age or age-based reprisal.
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 finding that Complainant did not show that the Agency discriminated against her based on her age or age-based reprisal when it directed her to report to Agency HQ; selected another employee to perform the same or similar job functions; subject her to harassment; and removed her.
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
_6/8/16_________________
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 Typical rotational assignments outside of the Agency last no more than four years.
3 Complainant later received disability retirement, retroactively effective November 1, 2001.
4 EEOC Appeal No. 0120072655 (July 31, 2008), as clarified by EEOC Petition No. 0420090007 (November 27, 2009).
5 EEOC Request No. 0520100403 (February 27, 2012). The OFO also issued two earlier decisions: EEOC Request Nos. 0520080753 (September 12, 2008), and 0520100222 (March 11, 2010).
6 In addressing an Administrative Judge's issuance of a decision without a hearing, a complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
7 Even if the MSPB reversed the Agency's removal action, we do not find that this fact, standing alone, would be evidence of age discrimination or aged based reprisal.
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