0120142258
10-16-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120142258
Agency No. FS-2013-00502
DECISION
On June 4, 2014, Complainant filed an appeal from the Agency's May 1, 2014, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the Agency's Business Operations Branch facility in Washington, D.C.
On April 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On or about March 6, 2013, Complainant was denied 4.5 hours of administrative leave and was forced to take annual leave, when the Federal Government was closed and there was no one available to provide her with assignments for telework.
2. Since March 31, 2013 and ongoing, Complainant's supervisor (Supervisor) more closely scrutinized her work product and holds her work to a higher standard than that of her coworkers.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency's final decision found that Complainant failed to establish that she was subjected to discrimination and/or harassment. The Agency noted that Complainant had a telework agreement that permitted her to telework as a reasonable accommodation for her medical condition. The agreement was signed by her prior supervisor in August 2012. On March 6, 2013, the Agency indicated that the Federal Government was closed due to inclement weather. Complainant noted that there was no one available to give her any assignments to perform. As such, based on the agreement, Complainant believed that she was to be provided with administrative leave. In response to Complainant's claim, the Supervisor indicated that guidance was provided by the Office of Personnel Management (OPM) indicating that the Federal Government was closed and that administrative leave should be provided. Further, those who were telework ready and could connect to the Agency, they were expected to telework or take leave. The Supervisor noted that Complainant logged onto the system and communicated with the Supervisor via email. The Supervisor instructed Complainant that she could do training if she did not have other matters to do. However, Complainant did not do so and logged off the system. As such, the Supervisor did not provide Complainant with administrative leave for March 6, 2013. Complainant in response to the Supervisor pointed out that she did not assign her any work nor gave a specific training for her to do while teleworking.
As to claim 2, Complainant asserted that she noticed on March 31, 2013, that updates had not been made to a spreadsheet and it contained errors. The Supervisor emailed Complainant before she could make changes to the spreadsheet. Complainant asserted that the spreadsheet is due at the end of the month and the Supervisor was making comments and criticizing it before it was due. Complainant noted that the spreadsheet was then discussed in an office meeting on June 11, 2013. She felt that it was negative and was humiliating to have it done in front of coworkers. The Supervisor denied Complainant's claim regarding closer scrutiny or adding steps for Complainant to perform. The Supervisor stated that the spreadsheets are provided to Directors with the Agency and need to be reviewed. As such, she reviews the work of all the subordinates and asks them to make corrections to ensure that the information that is provided to the Directors is accurate. As for the spreadsheet at issue, the Supervisor reviewed the document on March 26, 2013, because the office was moving to a new system and she wanted to make sure that the right information was being used. The Supervisor did not believe that this should have been something that would be upset Complainant. As for the meeting in June 2013, the Supervisor spoke to Complainant ahead of the meeting about discussing the spreadsheet. The Supervisor noted that the discussion was for the benefit of all the employees and Complainant could have told her not to discuss the issue.
Based on the evidence in the record, the Agency determined that the Supervisor provided legitimate, nondiscriminatory reasons for her actions. Further, the Agency found that Complainant failed to show that the reasons were pretext for unlawful retaliation. To the extent Complainant alleged harassment, the Agency determined that Complainant failed to meet the standard of harassment.
This appeal followed. On appeal, Complainant provided a copy of her affidavit which was part of the Agency's report of investigation. The Agency asked that the Commission affirm its final decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
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).
Upon review of the record, we determine that the Agency has provided legitimate, nondiscriminatory reasons for its actions. As for claim (1), the Supervisor indicated to Complainant in emails that she could work on training while on telework or take leave. Based on Complainant's actions, the Supervisor did not provide Complainant with 4.5 hours of administrative leave. With respect to claim (2), the Supervisor noted that she reviews the work of Complainant as well as the other Budget Analysts before it is provided to the Directors. We turn to Complainant to establish that the Agency's reasons constitute pretext for unlawful retaliation. We find that she failed to do so. As such, we conclude that Complainant has not shown that she was subjected to unlawful retaliation.
Harassment
It is well-settled that harassment based on an individual's prior protected EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on her prior EEO activity; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). We find that Complainant has not established that the alleged actions constituted a hostile work environment or that the events alleged occurred because of her prior EEO activity. Therefore, Complainant had not established that she was subjected to retaliatory harassment.
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 decision finding no discrimination.
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
October 16, 2014
__________________
Date
2
0120142258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142258