Bertie J.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Apr 15, 2016

0120142230 (E.E.O.C. Apr. 15, 2016)

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

Bertie J.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120142230

Hearing No. 470-2011-00266X

Agency No. NPS-10-0378

DECISION

The Commission accepts Complainant’s appeal from the Agency’s May 19, 2014 final order
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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at
the Agency’s Cuyahoga Valley National Park in Brecksville, Ohio. Complainant uses the
Agency’s administrative finance system called AFS3 for programming and executing the
budget. Complainant, her supervisor (S1), and the Budget Assistant (BA) were the only
employees with access to the AFS3 program. An audit subsequently uncovered that
Complainant and S1 were both listed as third-party draft managers when there only should
have been one. During a staff meeting, S1 and Complainant agreed that S1 would remove
Complainant’s name as a third-party manager. When S1 attempted to remove Complainant as
a third-party manager, she instead removed Complainant’s entire access to the program. The
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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next day, Complainant noticed her access had been removed and contacted the Regional
Office. Complainant’s access to the system was subsequently restored. S1 later acknowledged
the mistake and took herself off the system as security manager to avoid similar future
mistakes.

On May 27, 2010, S1 went out on a business trip and left Complainant to act in her place.
S1’s outgoing voicemail message advised callers to direct administrative issues to the
appropriate specialist or to Complainant in her absence. Complainant claims that when other
employees were left acting, S1’s outgoing message directed callers to contact the acting
employee directly. Complainant further alleges that she was subjected to ridicule by her co-
workers because of the difference in S1’s voicemail message.

Additionally, S1 asked Complainant to collect information for an audit finding during her
absence. Complainant collected the information for the audit during S1’s absence and
forwarded it to the Accounting Operations Center. Complainant claims that S1 told her she
would help her with the finding when she returned, but failed to do so. S1 believed that since
the project was complete, there was no need to provide any further assistance to Complainant.
Further, while on travel, S1 sent Complainant an email stating that she wanted to review
Complainant’s Standard Operating Procedure (SOP) on the purchase card procedures because
the contracting office at the regional office questioned a part of it. S1 stated that she would
“get with her” about the SOP after she returned, but Complainant states that she never met
with her about it.

On June 8, 2010, the Park received a Donations Management Report that was forwarded to
Complainant on June 9, 2010. S1 asked Complainant to collect and compile data requested in
the report, which was due on June 21, 2010. Complainant met with S1 and the Deputy
Superintendent on June 10, 2010, to review and discuss the Agency’s position on the report.
Complainant worked on Saturday to complete the project; however, S1 informed Complainant
that she would not able to review the report until the following Friday, June 18, 2010.

On June 17, 2010, S1 left Complainant a message to let her know if there was anything that
Complainant had to report at the squad meeting. Complainant was working in the building,
and was not in her office. S1 passed by where Complainant was working, but did not ask for
the notes. Complainant claims that on the same day, she intended to ride with S1 and others to
a meeting. S1 left Complainant a message informing her that a co-worker was driving to the
meeting and that she would run over and try to catch Complainant to carpool to the meeting.
S1 did not find Complainant. Complainant alleges that had she not been heading back to the
conference room, she would not have seen S1 and others getting into the van. The group
offered Complainant a ride to the meeting.

Later that day, Complainant claims that S1 took a new employee from the Major Acquisition
Buying Office and a new intern on a tour of the Park. Complainant sent the donations report
to the Midwest region on June 18, 2010, and then revised it and sent it again on Saturday, June
19, 2010. The report was submitted before the June 21, 2010 due date. Additionally,

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Complainant was responsible for preparing the Park's annual purchase card audit, which was
also due on June 21, 2010. Complainant stated that she had to work over the weekend to get
both projects completed. S1 reviewed the information, and Complainant submitted the report
on June 18, 2010, with a revised version on June 19, 2010.

Complainant alleges that after S1 returned from traveling, she advised S1 that she planned to
take some time off around July 21 through 23, 2010, and that she was scheduled to travel the
week of July 26, 2010. S1 informed Complainant that the Deputy Superintendent wanted to
have a final budget meeting and that she would let everyone know when there was a time and
date. Subsequently, S1 sent an email checking availability for budget meetings, and all of the
proposed dates were all days that Complainant planned on taking leave. Complainant is
required to attend budget meetings. Management subsequently informed employees to hold
July 23, 2010 open for the budget meeting, which required Complainant to change her plans.

Complainant had been working part-time from home until February 2010 while recovering
from surgery. S1 sent Complainant her first Employee Performance Appraisal Plan (EPAP)
on February 25, 2010. Complainant and S1 had considerable discussion about the critical
elements and made multiple tweaks to the language of the EPAP as a result. Complainant
subsequently received and signed her EPAP on or around June 24, 2010. The rating period
ended on September 30, 2010, which allowed for the minimum 90-day evaluation period.
Complainant was subsequently rated as “Exceptional” and received a Quality Step Increase.

On June 22, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American) and in reprisal for prior protected EEO activity when:

1. On April 23, 2010, Complainant’s name was removed by her supervisor from the
AFS3 budget program during an audit;

2. At various times in May and June 2010, Complainant’s work product was delayed
and questioned by her supervisor, and Complainant’s authority was undermined in
front of her subordinates; and

3. Complainant's supervisor failed to complete her Employee Performance Appraisal
Plan (EPAP) for fiscal year 2010.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) as
previously raised in another complaint and the subject of a settlement agreement. Complainant
raised no challenges to this dismissal on appeal; therefore, the Commission will not address the
claim in this decision.

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requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on May 1, 2014.

In her decision, the AJ determined that Complainant failed to establish a prima facie case of
discrimination and reprisal as to her claims. With respect to claim (1), the AJ found that the
evidence showed that Complainant’s name was removed from the AFS3 system and reinstated
within hours. The AJ noted that while S1 asserted it was imply a mistake, the removal of
Complainant’s name was nothing more than an inconvenience which did not result in a
materially adverse change in the terms and conditions of her employment. Regarding claim
(2), the AJ found that testimony and evidence did not support Complainant’s contention that
she was belittled in front of subordinates or that her work product was intentionally delayed.
The AJ concluded that Complainant’s claims regarding S1’s voicemail messages, almost
missing a car pool to a meeting, having to change leave plans to attend a meeting, her
supervisor being dismissive of her questions during meetings, and the timeliness of her EPAP
all fail to rise to the level of adverse employment actions. Further, with respect to her EPAP,
the record showed that employees outside of Complainant’s protected groups under S1’s
supervision also experienced delays in relation to their EPAPs similar to Complainant. As a
result, the AJ found that Complainant had not been discriminated against based on her race or
prior protected EEO activity.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ inappropriately granted summary judgment in favor
of the Agency. Complainant contends that the AJ erred in granting summary judgment as
there was a significant disparity in evidence to be judged by the fact finder. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to 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

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based on her 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. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was discriminated against and subjected to a hostile work environment as evidenced by
multiple incidents. Construing the evidence in the light most favorable to Complainant, the
Commission agrees with the AJ that Complainant has not shown she was subjected to a hostile
work environment. The record reflects that the alleged incidents were more likely the result of
routine supervision, personality conflicts, and general workplace disputes and tribulations.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus. For example, with respect to claim (1), S1 explained that
she unintentionally removed Complainant’s access to the AFS3 program; however,
Complainant’s access was restored within two hours. ROI, at 128. With respect to claim (2),
S1 stated that she has used the same “out of office” voicemail message for years and she did
not change it depending on who was “acting.” Id. at 181. Regarding carpooling, S1 stated
that employees often carpool to meetings and plans often change quickly. Id. at 182. S1 stated
that she did not intend to ignore Complainant by not stopping and talking, but presumed the
message she sent Complainant provided a departure time. Id. As to the June 2010 data report,
S1 affirmed that it was appropriate for Complainant, as the Budget Analyst, to collect and
compile the date requested in this report. Id. at 132. S1 noted that Complainant submitted the
report on time, and there was nothing inappropriate about her leaving voicemails for
Complainant. Id.

With respect to Complainant’s planned leave, S1 stated that she did not remember the dates
Complainant mentioned or if Complainant stated that she had firm plans. ROI, at 133.
Nonetheless, S1 noted that if Complainant had a conflict with the dates listed, she should have
raised it at the time and the meeting could have been scheduled for the previous week. Id.
Finally, regarding claim (3), S1 affirmed that Complainant’s EPAP completed and signed on
June 24, 2010, covering the period ending September 30, 2010, which allowed for the

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minimum 90 days required to evaluate an employee. Id. S1 explained that Complainant’s
EPAP involved a lot of discussion about the critical elements and required multiple tweaks to
the language. Id. at 133-34. The Deputy Superintendent noted that there was several other
employees under S1’s supervision that were in a similar situation with their EPAPs, and that
management had experienced difficulties in getting employees under EPAPs within the
established deadlines. Id. at 143.

Finally, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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

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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

April 15, 2016
Date