REGINA K. MURRY, COMPLAINANT,
v.
MARTHA N. JOHNSON, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AGENCY.

Appeal No. 
0120093069
Hearing No. 310-2005-00522X
Agency Nos. 23-R7-HR-RKM-CO1-01, 23-R7-STF-RKM-CO1-02, 24-R7-HR-RKM-C01-01

July 20, 2012

DECISION

On July 17, 2009, Complainant filed an appeal from the Agency's final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) 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 decision.

BACKGROUND

At the time of events giving rise to the complaints in this appeal, Complainant was employed as a Supply Technician, GS-5, at the Agency's National Forms and Publications Center in Fort Worth, Texas.

On January 9, 2003, Complainant filed a formal complaint of discrimination, docketed as Agency number 23-R7-HR-RKM-CO1-01, and alleged that she was discriminated against on the bases of race (African-American), disability (Panic Anxiety Disorder, Agoraphobia, PTSD), and in reprisal for prior protected EEO activity, when:
1. On November 25, 2002, she became aware that she was not afforded the same opportunity as a coworker to be detailed to higher graded duties when her supervisor was reassigned out of her work area.

Complainant also alleged that she was discriminated against on the basis of sex (female) when:
2. In December 2002 she became aware that a male co-worker was performing primarily the same duties as her, but she was not receiving the same pay as the male coworker.

On May 29, 2003, Complainant filed another formal complaint of discrimination, docketed as Agency number 23-R7-STF-RKM-CO1-02, and alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), National Origin (unspecified), color (dark brown), disability (mental), and in reprisal for prior protected EEO activity when:
3. On March 27, 2003, and April 3, 2003, her supervisor denied her request to use Official Time to work on her EEO complaints;
4. On March 27, 2003, she was notified that her reasonable accommodation of flexi-time work schedule was being removed and she would be placed on a fixed work schedule of 7:00 am to 3:30 pm;
5. On March 27, 2003, her supervisor placed her on leave restriction and charged her AWOL each time she took off when she was sick, and consequently she was issued a Record of Counseling of Unacceptable Attendance on April 29, 2003; and
6. On April 29, 2003, she received a mid-year Performance Appraisal that did not accurately reflect her work performance.

Complainant subsequently amended 23-R7-STF-RKM-CO1-02 to include allegations that she was subjected to harassment when:
7. In June of 2003, her supervisor contacted her physician concerning the leave she requested, and on June 13, 2003, refused to grant her leave;
8. On June 4, 2003, she turned in her physician's request for flex-time reasonable accommodation, and her supervisor never honored her request.

On October 17, 2003, complaints 23-R7-HR-RKM-CO1-01 and 23-R7-STF-RKM-CO1-02 were consolidated by the Agency.

On December 7, 2003, Complainant filed another formal complaint of discrimination, docketed as Agency number 24-R7-HR-RKM-C01-01, and alleged that she was harassed and subjected to discrimination on the bases of disability and in reprisal for prior protected EEO activity when:
1. In June 2003, her supervisor contacted her physician concerning the leave she requested, and on June 13, 2003, refused to grant her leave;
2. On June 4, 2003, she turned in her physician's request for flex-time reasonable accommodation, and her supervisor never honored her request;
3. Effective July 28, 2003, she was terminated from the Agency; and
4. She never received a copy of her 2001, 2000, 1999, and 1998 performance appraisals.

On March 4, 2004, the Agency dismissed 24-R7-HR-RKM-C01-01. Claims 1 and 2 were dismissed because the same claims were raised in 23-R7-STF-RKM-CO1-02. Claim 3 was dismissed because the same matter was raised with the MSPB. Claim 4 was dismissed for untimely EEO Counselor contact, and because this issue had been previously adjudicated.

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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, on September 10, 2009, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that there is sufficient evidence in the record for a finding of discrimination in her favor. Complainant asserts that she was subjected to ongoing harassment and the Agency violated the Equal Pay Act. She also requests default judgment against the Agency for EEO complaint 24-R7-HR-RKM-C01-01 because they never issued a final agency decision. In opposition to the appeal, the Agency asserts that Complainant failed to establish by a preponderance of the evidence that she was discriminated against or subjected to a hostile work environment.

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").

Dismissal of EEO Complaint 24-R7-HR-RKM-C01-01
On appeal, Complainant requested a default judgment against the Agency because it failed to issue a final decision for 24-R7-HR-RKM-C01-01. A review of the record reveals that on March 4, 2004, the Agency dismissed this complaint. That dismissal is considered a final action by the agency, and therefore Complainant's request is denied.

We agree with the Agency's dismissal of complaint 24-R7-HR-RKM-C01-01. Claims 1 and 2 are identical to the claims that were amended to 23-R7-STF-RKM-CO1-02, and will be addressed below. Therefore, these claims were properly dismissed pursuant to 29 C.F.R. 1614.107(a)(1) for stating the same claims raised in the previous complaint.

The record reveals that claim 3 is identical to an issue that has previously been addressed by the MSPB. Our regulations state that an Agency shall dismiss a complaint where the Complainant has raised the same matter in an appeal to the MSPB. 29 C.F.R. 1614.107(a). Accordingly, this claim was properly dismissed.

Finally, claim 4 was raised with an EEO Counselor beyond the 45 days required by our regulations. EEOC Regulation 29 C.F.R. 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the date of the action. The Commission has adopted a "reasonable suspicion" standard to determine when the 45 day limitation period is triggered. SeeHoward v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination become apparent. Here, Complainant's allegation that she never received her performance appraisals for 2001, 2000, 1999, and 1998 occurred more than 45 days from the date she contacted an EEO counselor in late 2003. Therefore, the dismissal of this claim was also appropriate.

EEO Complaint 23-R7-HR-RKM-CO1-01
Complainant alleged that she was discriminated against on the bases of race (African-American), disability (Panic Anxiety Disorder, Agoraphobia, PTSD), and in reprisal for prior protected EEO activity, when she became aware that she was not afforded the same opportunity as a coworker to be detailed to higher graded duties when her supervisor was reassigned out of her work area. Complainant also alleged a violation of the Equal Pay Act when she became aware that a male co-worker was performing primarily the same duties as her, but she was not receiving the same pay as the male coworker.

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the 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. SeeSt.Mary's Honor Center 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. SeeU.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we will assume without finding that Complainant established her prima facie cases of race, disability, and reprisal discrimination.

The Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency asserts that Complainant's coworker was not detailed to a higher grade position. Complainant's coworker requested additional duties, and since Complainant's supervisor would soon be leaving, the supervisor allowed the coworker to learn new duties for the purpose of relaying the information to the new supervisor. Complainant's supervisor stated that Complainant refused to accept training, would walk away if she attempted to talk to Complainant about training, and was frequently unavailable to learn new duties because of her time and attendance issues.

In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her race, disability, and prior protected EEO activity.

Complainant alleged that the supervisor was specifically setting the coworker up for a promotion, and favored the coworker by allowing her to act in the supervisor's position when the supervisor was out of the office. Complainant believes she was not given the same opportunities because of her race, disability, and prior protected EEO activity. After a review of the record, we find that beyond Complainant's bare assertions and subjective beliefs, there is no evidence in the record that would support the assertion that the supervisor's decision to assign the coworker additional duties was motivated by discrimination.

With regard to Complainant's allegation that a male coworker was getting paid more for performing the same duties as Complainant, the Equal Pay Act prohibits discrepancies in pay on the basis of sex. 29 U.S.C. §206(d)(1). In order to state a valid claim under the Equal Pay Act, a Complainant must allege that a member of the opposite sex was paid higher wages for equal work on a job which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Id.

Complainant, a Supply Technician, GS-5, compared herself to a male Program Analyst, GS-9, and asserted that they performed the same duties yet he was paid more. A review of the record reveals that the coworker had a different job title than Complainant. Additionally, the male coworker and Complainant had different duties. Specifically, the male coworker bad more responsibility because he serviced had different and larger federal agencies while Complainant, in contrast, only serviced two smaller federal agencies. Further, a review of the record reveals that the male Program Analyst had additional duties that Complainant did not have, such as monitoring supply levels and purchasing supplies, and checking and loading inventory for the Agency's Forms Center and the Central Mail List Service Center. As a result, we find that Complainant failed to establish that she performed "equal" work to the male coworker.

EEO Complaint 23-R7-STF-RKM-C01-02
Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), National Origin (unspecified), color (dark brown), disability (mental), and in reprisal for prior protected EEO activity. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Pole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. SeeHenson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).

After a review of the record, we find that Complainant failed to establish a prima facie case of harassment because she did not provide any evidence that would establish that any of the Agency's actions were motivated by Complainant's race, color, national origin, disability or prior protected activity. With respect to the allegation that the Agency failed to grant Complainant her request for Official Time to work on preparing her EEO complaints and appeal, the record reveals that Complainant requested 40 hours of Official Time. Her supervisor granted her 40 hours in the form of 4 hours of Official Time (leaving 4 hours for work time) for 10 consecutive work days. Complainant asserts that she should have been granted Official Time for 8 hours a day. Complainants are entitled to a reasonable amount of official time to present the complaint and to respond to agency requests for information. 29 C.F.R. § 1614.605(b). The actual number of hours to which a Complainant is entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the Agency and the Agency's need to have its employees available to perform their normal duties on a regular basis. Equal Employment Opportunity Commission Management Directive 110 (MD-110), Chapter 6, Section VIII (C). For the preparation of a formal complaint or appeal, "reasonable," with respwt to preparation time (as opposed to time actually spent in meetings and hearings), is generally defined in terms of hours, not in terms of days, weeks, or months. Id. MD-110 notes that "The Commission considers it reasonable for Agencies to expect their employees to spend most of their time doing the work for which they are employed."Id. We find that Complainant was granted a reasonable amount of Official Time to work on her EEO complaints.

With regard to Complainant's allegation that she was removed from flex-time work schedule and placed on a schedule of 7:00 am to 3:30 pm, we note that there is no evidence in the record that would indicate that Complainant's flexi-time schedule was a previous reasonable accommodation. Instead, the record indicates that every employee had a flexi-time schedule. The record also supports the Agency's assertion that Complainant was removed from the flexi-time schedule because she was having time and absence issues. The record reflects that Complainant was counseled numerous times by her supervisors for her excessive tardiness and absences without medical documentation. The record establishes that between April 1, 2003, and April 19, 2003, Complainant was one to two hours late for work every day except two days on which she did not report at all. The record also supports the Agency's actions when it placed her on leave restriction, charged her AWOL when she was absent and did not provide medical documentation, and consequently issued Complainant a Record of Counseling of Unacceptable Attendance. There is no evidence in the record that the Agency took any of these actions for discriminatory reasons.

With regard to Complainant's allegation that she was harassed when she received a lower midyear Performance Appraisal, the record reflects that Complainant's supervisor rated her as "successful" in all critical elements. Complainant's supervisor stated that because of Complainant's excessive absenteeism, Complainant's coworkers had to complete her work or her work was not completed The record supports the supervisor's statement, and Complainant has not submitted any evidence that would establish that her race, color, national origin, or prior protected EEO activity played a role in her receiving a "successful" rating on her mid-year performance evaluation.

Complainant alleges that after Complainant submitted medical documentation for a reasonable accommodation, her supervisor subjected her to harassment when he contacted Complainant's physician. The supervisor stated that he called her physician to authenticate her medical documentation because he believed that her submitted medical documents were not authentic due to the unprofessional quality of the documentation, the fact that some of the information was not accurate, and because Complainant stated that she would change the information on the documentation herself. There is nothing in the record that would indicate that Complainant's supervisor obtained confidential medical information that he did not already have. Additionally, there is nothing in the record that would indicate that the supervisor contacted the physician due to discriminatory motives.

Finally, Complainant alleges that she was harassed when her supervisor did not honor her request for flex-time as a reasonable accommodation. A review of the record shows that Complainant requested to be reinstated to a flex-time schedule and that she be granted FMLA leave instead of being charged AWOL. Documentation in the record shows that Complainant's supervisor was engaging in the interactive process to determine whether a flex-time schedule was an effective reasonable accommodation when he received notice that Complainant was terminated from the Agency. Additionally, Complainant's supervisor granted Complainant's request to convert Complainant's AWOL to FMLA leave from the date of her request until her separation. There is nothing in we record that would establish that any of the supervisor's actions were due to discriminatory animus towards Complainant's protected groups.

Therefore, we find that Complainant failed to establish her prima facie case of 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 because a preponderance of the evidence of the record does not establish that discrimination existed as alleged.

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. See29 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. See29 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)

*9 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