0120111953
11-02-2012
Barbara Sonnier, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce, Agency.
Barbara Sonnier,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce,
Agency.
Appeal No. 0120111953
Hearing No. 570-2009-00832X
Agency No. 09-51-00036
DECISION
Complainant appeals to the Commission from the Agency's final decision dated January 25, 2011, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In her complaint, dated November 21, 2008, Complainant, a Program Assistant, ZS-344-04, at the Agency's Office of Administrative Operations (OAO), Office of the Secretary, Washington, D.C., alleged discrimination based on age (over 40) and in reprisal for prior EEO activity when:
(1) On September 24, 2008, her then supervisor (S1) informed her that Acting Director (AD), OAO, instructed her to tell Complainant not to have any contact with an identified Program Management Specialist within the Personal Property Management Division (PPMD) area because of his "past" problems with property and the Director.
(2) During a meeting on September 24, 2008, with the AD, the Acting Chief of Information Management Division (IMD), and an identified individual, the Acting Chief complained about her presence in the IMD office. Further, S1 was directed by the AD to advise her not to go to the IMD office because she was causing problems with another individual and interfering with that individual's job performance.
(3) Sometime between September 20 and 24, 2008, her personal medical files were removed from the office.
(4) On October 29, 2008, S1 indicated to her that during the weekly OAO staff meeting, the AD said that she wanted to know who "dropped the ball" on the purchase of a copier for IMD. She believes that the AD is attempting to set her up "to take the fall" for this matter.
(5) After informing the AD of her intent to apply for the position of Supervisor Program Manager, OAO (a position in which the AD is currently serving in an acting capacity and a position for which the AD previously told her that she was applying for), the AD became upset and said that she was "not qualified" to apply for the position.
(6) On November 3, 2008, she learned that she was disqualified for consideration for the position of Supervisory Program Manager, OAO, as advertised under Vacancy Announcement Number OS-OAS-2008-0020, because she did not meet the "minimum one year qualifications."
(7) At least three security cameras have recently been installed on the second floor, 8th corridor, including one right outside of her office.
(8) The AD has repeatedly told her that she is not comfortable asking her to do certain tasks because of her "experience," which she construes to be a reference to her age.
(9) On November 5, 2008, at approximately 10:00 a.m., the AD had her removed from a previously approved training course on "Managing Projects" when the instructor handed her a note requesting that she return to OAO offices immediately for a meeting with the AD. Even though the meeting did not occur, she was not permitted to return to the training class.
(10) On November 5, 2008, at 4:11 p.m., she was informed by the Information Technology (IT) office that her password had been changed. On November 6, 2008, she arrived at her PPMD office and could not log into her computer. She also found that her account had been removed, as well as her access to the G drive where she normally works. In addition, all of her Agency emails were removed.
Complainant also alleged discrimination in reprisal for prior EEO activity when:
(11) She was locked out of her computer shortly after 2:47 p.m. on November 6, 2008. This occurred just a short while after the EEO Office notified the AD of her EEO activity. When she contacted the IT Help Desk, she was informed that they could not give her any information as to why this occurred. The IT Office then referred her to her acting supervisor for information regarding her computer access.
(12) She no longer has access to her computer to perform any of the essential functions of her position. Also, any documents she attempts to prepare mysteriously disappear.
(13) She received a performance rating of 78 for FY 2008, the lowest score in the organization, despite previously having been advised by S1 and the AD that her score would be in the 80s.
After completion of the investigation of the complaint, Complainant requested a hearing but an EEOC Administrative Judge (AJ) denied the request and remanded the case to the Agency for the issuance of its final decision.1 Accordingly, the Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
Initially, we note that on August 26, 2010, the AJ properly dismissed Complainant's request for a hearing concerning the instant complaint. Specifically, the AJ indicated that on March 4, 2010, she issued an Order to Complainant to refrain from communicating about the instant case with Agency officials other than the Agency's designated representative. Therein, Complainant was also informed of the possibility of sanctions for failure to comply with the foregoing order. Thereafter, on May 12, 2010, the AJ issued another Order indicating that Complainant violated the March 4, 2010 Order when she subsequently sent her correspondence regarding the instant case to Agency's General Counsel, i.e., a non-designated representative of the Agency; she unreasonably characterized a typographical error in one of the Agency's interrogatories as a means of avoiding discovery; and, she announced her unavailability during these proceedings without prior request for an extension. Therein, Complainant was again explicitly advised that her failure to follow the Orders would result in sanction against her. On August 5, 2010, Complainant again sent her correspondence concerning the instant complaint in detail, including the Agency's purported improper processing of her complaint, to the Agency's Secretary. Based on the foregoing, we find that the AJ properly dismissed Complainant's request for a hearing and remanded the case to the Agency for the issuance of a final Agency decision, pursuant to 29 C.F.R. � 1614.109(f)(3)(v).
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").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents.
With regard to claim (1), the AD stated that Complainant and the identified Program Management Specialist were not required to interact for job-related purposes. During the relevant time period, the AD stated that she observed the two socializing rather than working for approximately over an hour and brought the matter to the attention of S1. The AD denied making the alleged comments about the identified individual. The identified individual admitted that during the relevant time period, Complainant did call him about a computer problem and he went to her office to help her. Both Complainant and that individual acknowledged that during that time, they spoke about their grandchildren.
With regard to claim (2), the Acting Chief, IMD, acknowledged that he complained to the AD that Complainant spent too much time visiting two of his employees in his IMD office, thereby interfering with his ability to supervise his staff. The AD acknowledged that she then mentioned this to S1, but denied instructing S1 to tell Complainant not to go to the IMD office.
With regard to claim (3), Complainant claimed that both the AD and S1 told her that there had been a break-in on their floor over the weekend and several files were also missing. The AD denied any involvement in the incident.
With regard to claim (4), the AD denied Complainant's claim. Instead, she indicated that in the meeting, when the Acting Chief told her that a replacement copier had not been received, she merely responded, "we dropped the ball on this task."
With regard to claim (5), the AD stated that they discussed Complainant's interest in another position, not the OAO Supervisory Program Manager position. She denied getting upset during the discussion.
With regard to claim (6), the Agency stated that its Human Resources Specialists were responsible for evaluating job applicants, including Complainant, to determine whether an individual met minimum requirements for a position. Management officials had no involvement in that process. At the relevant time period, Complainant was assigned to a ZS-5 job, equivalent to approximately a GS-8 position. The position of Supervisory Program Manager, OAO, for which she applied, however, was a ZA-5, equivalent to GS-15.
With regard to claim (7), Complainant acknowledged that the AD told her these cameras were installed to deter thefts. The AD denied any involvement in the decision to install cameras on the second floor. The Deputy Director stated that he approved the installation of those cameras due to prior break-ins.
With regard to claim (8), the AD denied making the alleged remarks.
With regard to claim (9), the AD indicated that she did not know Complainant was attending the training course at the relevant time period. She stated that she requested Complainant return to her office because she planned to meet with her to terminate her from her position during her probationary period for the insubordination she exhibited during their October 1, 2008 meeting. The AD indicated that the meeting, however, did not take place on November 5, 2008, since she was awaiting the Office of General Counsel's approval on Complainant's termination letter. The record indicates that the AD's proposed termination action was not approved and was never executed. The AD stated that Complainant was not allowed to return to the training because she had already missed the first day of that three-day training course.
With regard to claims (10), (11), and (12), the AD indicated that prior to Complainant's planned removal, described in claim (9), in accordance with the Agency's policy, she requested Complainant's computer access rights be terminated around 4 p.m. on November 5, 2008. However, stated the AD, the Office of the Chief Information Officer terminated Complainant's computer access before she could notify them that Complainant's termination action had been placed on hold. The AD and the Acting Chief indicated that once it became clear that Complainant's termination action had been cancelled, they immediately took steps to ensure Complainant's access rights were fully restored.
Complainant's new supervisor, who supervised Complainant from November 1, 2008, to March 16, 2009, stated that he also contacted IT Help Desk for assistance and even offered to replace her computer, but she refused. During the time when he supervised Complainant from November, 2008, to March, 2009, the foregoing supervisor stated, Complainant's job performance was never adversely affected due to computer problems. The Acting Chief also stated that with the exception of locating a calendar, Complainant's computer access, including restoration of her emails, was fully reinstated on November 6, 2008, i.e., the next day.
With regard to claim (13), the AD denied telling Complainant that her rating score would be in the 80s. The AD stated that Complainant's rating score of 78 was based upon her job performance from May to September 30, 2008, as a Program Assistant. The Deputy Director, who was also "the Pay Pool Manager" for OAS, concurred with the rating of 78.
Upon review, we find that Complainant failed to show that she was treated less favorably than any similarly situated employee under similar circumstances. It appears that Complainant did not agree with the manner which management was conducting its business and had a number of disagreements with her supervisors. After a review of the record, we find that Complainant failed to show that the Agency's stated reasons for its actions were a pretext for harassment or that discriminatory animus motivated the Agency's actions. Based on the foregoing, we find that Complainant has failed to show that the Agency's actions were motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED.
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
11/2/12
__________________
Date
1 The record indicates that the AJ consolidated Complainant's instant complaint and her subsequent complaint, Agency No. 09-51-00896, for the purpose of hearing. An appeal of that complaint is being considered in EEOC Appeal No. 0120111951.
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0120111953
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013