Arlette W.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120140915 (E.E.O.C. Oct. 20, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arlette W.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.

Appeal No. 0120140915

Hearing No. 520-2013-00179X

Agency No. EOI201200478

DECISION
Complainant filed an appeal from the Agency’s December 4, 2013, 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 for de novo
review. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Legal Assistant at the Immigration Court in New York City. On
April 13, 2012, she filed an EEO complaint in which she alleged that a Supervisory Legal
Assistant, her first-line supervisor (S1), the Deputy Court Administrator, her second-line
supervisor (S2), and the Court Administrator, her third-line supervisor (S3), harassed her on
the bases of age (58) and in reprisal for protected EEO activity by disciplining her, by sending
her a constant stream of emails critical of her work, and by berating and belittling her in
meetings from the time she returned to New York in December 2010 until she went on
indefinite medical leave in June 2012. At the conclusion of the ensuing investigation, the
Agency provided Complainant with a copy of the investigative report (IR) and notice of her
right to request a hearing before an Equal Employment Opportunity Commission

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.
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Administrative Judge (AJ). Although Complainant timely requested a hearing, the AJ assigned
to the case granted the Agency’s July 1, 2013, motion for summary judgment over her
objections and issued a decision on October 18, 2013, without holding a hearing. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

Complainant started working as a legal assistant for the New York Immigration Court in 1998.
She transferred to the Immigration Court in Miami, Florida in 2006, but returned to New York
in December, 2010. IR 45-51. Upon her return to New York, she was assigned as the
assistant to an Immigration Judge (IJ). IR 67-68, 904. She averred that during her first week
on the job in New York, S1 denied her request to be assigned to the desk outside of the IJ’s
courtroom, told her to do her work in the IJ’s courtroom while hearings were going on, and
issued her a letter warning on her third day of work for disrespectful conduct toward a
supervisor. IR 72-76, In the warning, S1 stated that she instructed Complainant to work in the
IJ’s courtroom because the telephone and computer at her assigned workstation were
temporarily inoperable and that Complainant had refused to do so, disregarding her
instructions and demanding to work at another desk. IR 428, 813, 909. S1 averred that she
denied Complainant’s request to work at the other desk, which was located outside of the IJ’s
courtroom, because there was not enough room for the case files at that location, and that
because Complainant had a tardiness problem, she wanted Complainant to work at a location
where she could see her. IR 814-15, 818-19. S2 averred that Complainant’s tardiness
persisted the entire time she was there and that the workspace desired by Complainant was not
large enough to accommodate the large number of case files comprising the IJ’s docket. IR
863-64, 868, 872-74. Complainant acknowledged that in March 2011, several months after her
arrival, her request for her preferred workspace was approved. IR 79-80, 409-410.

Complainant averred that during the entire 18 months of her return engagement in New York,
S1 had constantly sent her emails which she characterized as harassing, nitpicking and
micromanaging. IR 77, 96-97. The record does contain a large number of emails from S1 to
Complainant, but they appear to give instructions to Complainant regarding the processing of
immigration case files. In one email, for example, S1 instructs Complainant to handle calls,
process mail, and pick up cases for another Immigration Judge. IR 181-82, 245. Another
email directs her to fill in for the Legal Assistant assigned to the other Judge while the other
Assistant was on leave. IR 184. In a third email, S1 informed Complainant about a motion to
reopen that had recently been filed. IR 193-95. Complainant had received many other such
notes and emails from S1 and S2. IR 181, 184, 204-08, 210-12, 281-83, 285-87, 387-92. In
response to the investigator’s question regarding the various emails she sent to Complainant,
S1 averred that as Complainant’s supervisor, it was her duty and responsibility to ensure that
the case files in Complainant’s possession were updated accurately and in a timely manner, and
that adherence to the schedule was critical due to the high volume of cases in the office. IR
357.

In addition to the notes and emails, Complainant identified a number of other incidents that she
characterized as harassment on the bases of age and reprisal. She averred that S1 constantly
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badgered her about her late arrivals despite the fact that she was no more tardy than anyone
else in the office and that she had compelling reasons for arriving late. IR 84-85. She also
averred that S1 gave her direction which conflicted with the instructions given to her by the IJ,
that she was always being called into S1’s office, that S1 obstructed her workflow by not
moving the items in the IJ’s docket along, and that S1 delayed issuing her mid-year appraisal.
IR 60-61, 84-85, 98-99, 122, 132-37, 142, 150-151, 251-52, 421-23. As previously noted,
Complainant had been on medical leave since June 26, 2012. IR 151.

ANALYSIS AND FINDINGS

Harassment of employees that would not occur but for their age or previous EEO activity is
unlawful if sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC
Appeal No. 01972699 (August 14, 1998). To warrant a hearing on her harassment claim,
Complainant must present enough evidence to raise a genuine issue of material fact as to
whether, because of her age she was subjected to conduct so severe or pervasive that a
reasonable person in her position would have considered it hostile or abusive. See 29 C.F.R.
§1614.109(g); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Where, as here,
Complainant has also alleged reprisal, she must submit evidence sufficient to raise a genuine
issue of material fact as to whether the Agency’s actions were harmful to the point that they
could dissuade a reasonable employee from making or supporting a charge of discrimination.
See 29 C.F.R. §1614.109(g); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S.
53, 57 (2006).

The conduct in question should be evaluated from the objective viewpoint of a reasonable
person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994). Only if Complainant satisfies her burden of
proof with respect to all of these elements, motive, hostility, and in the case of reprisal,
chilling effect, will the question of Agency liability for harassment present itself. See
Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120132783 (Sept. 11, 2015).
Complainant should bear in mind however, that routine work assignments, instructions, and
admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse
on part with a racial epithet or otherwise engender a hostile work environment. Complainant
v. Dept. of State, EEOC Appeal No. 0120123299 (Feb. 25, 2013).

In support of her claim of discriminatory and retaliatory harassment, Complainant put forward
the affidavits of a fellow Legal Assistant (LA) and the IJ. The LA averred that S1 treated a
number of younger employees more favorably. IR 989-995. However, when asked by the
investigator if she heard S1, S2, or S3 discuss retirement with Complainant or make any age-
related comments about Complainant’s age, she responded that she was not aware of any such
comments. IR 988. The IJ also opined that S1 was not a good supervisor and had showed a
tendency to bully Complainant, but when asked whether she believed that S1’s hostility was
due to Complainant’s age, she replied that she had no idea. IR 948-49. Complainant has not
presented any other evidence that contradicts S1’s explanation for her actions or demonstrates
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that the incidents complained of were anything more than routine work assignments,
instructions or admonishments.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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).

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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

October 20, 2016
Date