Brook V.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Sep 22, 2016

0120142967 (E.E.O.C. Sep. 22, 2016)

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

Brook V.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.

Appeal No. 0120142967

Hearing No. 570-2013-00947X

Agency No. USM-2013-00014

DECISION

On August 21, 2014, Complainant filed an appeal from the Agency’s July 31, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final order finding no discrimination.

BACKGROUND

Complainant worked as a Contractor and was utilized in various capacities at the Agency for
14 years. At the time of the events giving rise to this complaint, Complainant was employed
by Project Support Services (PSS) and her assignment was in the Agency’s Management
Support Division, Employee Transit program. Complainant reported to Person A,
Management and Program Analyst in the Management Support Division. Person A was the
designated Contracting Officer Representative on contracts affecting the Management Support
Division. Person A was also the Coordinator of the Employee Transit Program. Person A

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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reported to Person B, Supervisory Program Analyst who also served as the Assistant Chief,
Program Support, in the Management Services Division.

On November 27, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), religion
(Muslim), and age (42) and subjected her to a hostile work environment in September 2012,
which culminated in her removal from the Agency contract with Project Support Services on
October 31, 2012.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. When
Complainant did not object, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on June 19, 2014.

The AJ found the Agency articulated legitimate, nondiscriminatory reasons for its actions and
that there were no genuine issues of material fact or credibility that require a hearing. The AJ
determined Complainant failed to produce any evidence that could refute the Agency’s
assertion that she was terminated from her contract position because the Agency transitioned to
a GO!Card transit credit card and there was no longer a need for two contractors to assist in
administering the Employee Transit Program. The AJ noted a second contract employee was
able to keep her position because she was employed under a different funding mechanism,
under a different contract that was not subject to termination. The AJ also noted that the
second contract employee who kept her position was also an African-American female who
was 57 years old at the time of the alleged discrimination.

In addition, the AJ found that Complainant failed to present sufficient evidence that she was
subjected to a hostile work environment. Specifically, the AJ determined that Complainant has
presented insufficient evidence to support an inference of a causal link between the alleged
incidents and her protected bases and the limited evidence presented falls short of establishing
a hostile work environment. The AJ specifically found Complainant’s verbal confrontation
with Person B does not rise to the level of actionable harassment. Furthermore, the AJ found
the incidents cited by Complainant taken individually or as a group do not rise to the level of
harassment. The AJ found that the alleged conduct cannot be considered sufficiently severe or
pervasive to have altered the conditions of Complainant’s work environment.

The Agency subsequently issued a final order on July 31, 2014. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

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
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C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and that
there are no disputes of material fact. In the present case, the Agency articulated legitimate,
nondiscriminatory reasons for terminating Complainant’s contract position. The Agency
explained it transitioned to a GO!Card transit credit card and there was no longer a need for
two contractors to assist in administering the Employee Transit Program. The record reveals
the Agency started the process of reducing funding on the contract with PSS in July 2012,
before the September 2012 alleged harassment or verbal altercation between Complainant and
Person B. The record reveals the funding for Complainant’s contract position expired and her
services were terminated on October 31, 2012. While another contractor was able to keep her
position, the Agency noted that the second contractor was employed under a different funding
mechanism and a different contract than Complainant. The Agency did not forbid the
contractor, PSS, from keeping Complainant employed with PSS working in a capacity with the
Agency. In the present case, Complainant failed to present any evidence that the Agency’s
stated reasons for its actions were a pretext for discrimination.

Additionally, we note Complainant claimed she was subjected to a hostile work environment in
September 2012. Upon review, we find Complainant failed to establish that she was subjected
to a hostile work environment as she failed to show that the alleged actions were based on her
protected classes.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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:
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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).

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
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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

September 22, 2016
Date