0120120613
07-18-2014
Complainant v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
Complainant
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120120613
Hearing No. 430-2011-00021X
Agency No. 2010-0032-R12
DECISION
On November 17, 2011, Complainant filed an appeal from the Agency's October 19, 2011, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly granted the Agency's Motion for a Decision without a Hearing on Complainant's claim that the Agency discriminated against her on the basis of reprisal for protected EEO activity and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 Equal Employment Opportunity (EEO) Specialist in the Office of Civil Rights (OCR) at the Agency's Savannah River Operations Office (SRO) in Aiken, South Carolina. Complainant, who filed two prior EEO complaints, stated that she filed one complaint in the late 1980s or early 1990s and the other complaint in 2006 or 2007.
On January 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. on June 1, 2009, she received a verbal counseling from her supervisor (S1), the Director of the Office of Civil Rights at the Savannah River Operations Office, regarding the internship program that she was managing for the Department of Energy EEO Program;
2. on July 15, 2009,1 she was reprimanded by her supervisor, during a meeting that she attended, when the supervisor interrupted the meeting to request that she move to a different seat that the supervisor had chosen for her to use;
3. on August 7, 2009, she was excluded from meetings and e-mails related to contractor activities that she believed she should have been involved in;
4. on September 17, 2009, she received a letter of counseling from her supervisor for mishandling an EEO investigation as part of her work responsibilities;
5. on October 8, 2009, the SRO Finance Accountant refused to sign off on her credit card account, which prevented her from "out processing" for her move and preparations for her new DOE position in Pennsylvania;
6. on May 1, 2009, duties within her position description were reassigned to a GS-12 EEO Specialist by her supervisor; and
7. during the period of January 2, 2008, through October 1, 2009, she was not afforded the same opportunity to act in the absence of her supervisor as were others, including employees of a lower grade.
The investigation disclosed that, as an EEO Specialist, Complainant processed EEO complaints, engaged in contractor oversight, managed the intern program, selected and supervised EEO Counselors, and acted in the absence of the Director of the Office of Civil Rights (OCR). In March 2007, S1 became the Director of the SRO-OCR. According to Complainant, she "couldn't do anything right where [S1] was concerned." Complainant asserted that S1 told her that she (S1) was brought in to clean up the EEO program at SRO and that she could leave if she did not like the way that S1 ran the program.
In January 2008, S1 hired a new EEO Specialist (E1) and directed Complainant to move to a different office so that E1 could have Complainant's office. According to Complainant, E1 performed duties that were within Complainant's job description. When Complainant expressed concerns about this, S1 told Complainant that S1 was the supervisor and could assign duties as she wished.
Complainant had managed the intern program since 2003. S1 told Complainant that she wanted to change the process and directed Complainant to train E1 to be Complainant's back-up on the program. In June 2009, an intern mentor from an Agency office asked Complainant why she was not following her previous practice of greeting new interns and bringing them to their host offices. Complainant replied that S1 had directed her not to do that. Later in the day, S1 gave Complainant a verbal warning and told Complainant that she should not discuss what S1 tells her with others. Complainant told S1 that the verbal counseling was unjustified because Complainant had just answered the mentor's question about why the intern program was being changed.
On July 15, 2009, Complainant attended a meeting and sat next to someone she knew. S1 told her not to sit there, and Complainant moved to a different seat. Complainant alleged that S1 wanted to demean and destroy Complainant because Complainant "stand[s] up for what is right in EEO process, rather than what [S1] wants to do."
Complainant asserted that S1 wanted to isolate her and excluded her from e-mails and meetings about intern, contractor, and budget matters. According to Complainant, E1 could arrange meetings and send e-mails without informing Complainant but Complainant had to send copies of everything that she did to S1 and E1.
Complainant also asserted that, several times, she discussed S1's unfair treatment of her with S1 and told S1 that she was going to speak to S2. On September 14, 2009, Complainant informed S1 that she had accepted a position at a different Agency facility. S1 sent Complainant an e-mail indicating that she wanted to meet with Complainant and a representative from the Human Relations Department to discuss Complainant's concerns, but Complainant refused to meet with S1. On September 15, 2009, after several failed attempts to schedule a meeting with S1's supervisor, the Deputy Manager for Business (S2), Complainant "just walked into [S2's] office and sat down." Complainant told S2 that she accepted the new position because S1 had created a hostile work environment.
On September 17, 2009, S1 gave Complainant a Notice of Formal Counseling for poor management of an EEO investigation in July and August 2009. According to the Notice, Complainant's "failure to schedule interviews and follow up on contacts with the vendor caused delays in the completion of the investigation." The Notice stated that it was not a disciplinary action, that it would not be placed in Complainant's Official Personnel File, and that S1 would keep the Notice. On October 9, 2009, Complainant gave S1 a rebuttal memorandum explaining why she believed the Notice was unjustified. She stated that she and the vendor had scheduled a date for the investigation, that she contacted witnesses to confirm their availability, and that the vendor subsequently asked to postpone the investigation because the investigator was not available for the scheduled date.
Complainant left the SRO in October 2009. Complainant stated that, to "out process" from her position at SRO and move to her new position at a facility in Pennsylvania, she needed to go through several offices and obtain signatures on a form. When Complainant went to the Finance Department, the Finance Accountant (FA) asked for Complainant's credit card. After Complainant explained that the credit card had already been transferred to the new facility, FA refused to sign the form, and Complainant walked away. Later in the day, S1 called Complainant to say that FA was in S1's office and would sign the form, and FA then went to Complainant's office and signed the form. Complainant believed that FA retaliated against her for prior EEO activity because S1 and FA are good friends.
Complainant stated that S1 assigned E1 to perform duties that were within Complainant's position description but not within E1's position description. According to Complainant, E1 selected EEO Counselors, prepared appointment letters, scheduled training for counselors, and attended senior staff meetings. In addition, S1 reassigned contractor-oversight and intern-program duties. Complainant stated S1 changed E1's position description after Complainant left SRO and asserted, "[S1] had reassigned my duties, and I kept bringing that up and she told me she was tired of me coming in there and complaining. I believe that this was another means used by [S1] to continue to harass me for doing my job in the EEO Office."
In addition, Complainant alleged that she did not receive the same opportunities to act in S1's absence that other employees received. Complainant served in an acting capacity in 2008, but it was in name only. In that regard, Complainant asserted that S1 would call E1 when Complainant was acting. The minutes of a January 7, 2009, staff meeting indicate that the office had a rotation chart that assigned employees to act in S1's absence on a monthly basis. Complainant was assigned February, June, and October; E1 was assigned April, August, and December; and two other employees were assigned the remaining months. Complainant stated that she acted only once, in August, when she was out of the office on travel.
Although Complainant did not believe that the alleged retaliation was related to her first EEO complaint, she argued that it "probably" was related to the 2006 complaint. Complainant stated that she filed the 2006 complaint against some Human Resources (HR) employees, including the HR Director, whom S1 had befriended.
Complainant told the EEO Investigator that, in addition to filing prior EEO complaints, she engaged in protected activity involving the nature of her job. In that regard, Complainant stated that she and S1 disagreed about interpretations of EEOC regulations and guidance. For example, they disagreed about whether a complainant may pursue both traditional counseling and alternative dispute resolution (ADR) and whether a complainant should receive a copy of the counseling report. In addition, Complainant disagreed with S1's decision to annotate a 2005 or 2006 EEO Counselor's report to include a new allegation. According to Complainant, the new allegation was against Complainant, S1 did not transfer the case to headquarters for processing, and the Agency settled the case without taking Complainant's statement.2
Further, Complainant asserted that S1 wanted to get rid of Complainant because of a May 11, 2006, report assessing SRO employment/human resources practices and policies. Complainant, an EEO manager from a different Agency facility, and an EEO manager from another agency prepared the report. According to Complainant, who served as the "Lead" on the assessment report, the Agency's HR Director wanted the report to be rescinded. She alleged that the HR Director had a grudge against her for doing her job and that he shared his dislike of Complainant with S1.
Complainant alleged that S1 retaliated against her for doing her job as an EEO professional. She asserted that S1 "clearly did not want to know how things are legally supposed to be done and when [Complainant] would address them with her, she would get irate and further retaliate against [Complainant] for doing [her] job." Complainant further asserted, "[S1] is out to destroy me because I stand up for what is right in EEO process, rather than what she wants to do."
S1 told the EEO Investigator that she was aware that Complainant had an EEO complaint that was active when S1 started working at the Agency. She stated that, at Complainant's request, she asked her former boss to mediate the complaint and that the complaint was resolved through mediation.
S1 stated that she spoke to Complainant about Complainant's June 2009 remarks to the intern mentor because Complainant's remarks were unprofessional, and that she directed all of the attendees at the July 2009 meeting to move around and sit with someone they did not know. S1 also stated that that she made changes to the intern program "to make the process flow better." She explained that "a manager has a right to decide how an organization is going to run and if a manager sees that there are things that could be done better then [the manager has] the right to make that decision." She denied that she excluded Complainant from e-mails or meetings regarding contractor or intern matters and denied that she knew anything about FA refusing to sign Complainant's "out processing" form because of credit-card issues. S1 asserted that Agency employees, such as people in the Budget Office, would go to Complainant rather than to S1 even though S1 was the Director of the Office of Civil Rights. Accordingly, S1 determined that the budget information should go to her and that she would "decide if and who needs to get a copy of that." S1 stated that the counseling program was the only area of responsibility that she removed from Complainant. In that regard, S1 noted that she assigned duties related to the informal complaint process to E1 and duties related to the formal complaint process to Complainant. According to documents that S1 submitted, from March 18, 2018, through July 26, 2009, Complainant acted in S1's absence six times, E1 acted seven times, and two other employees acted a total of nine times.
S1 denied that she retaliated against Complainant for filing an EEO complaint or for disagreeing with S1 about the interpretation of EEO regulations. She stated that "there were many instances where [Complainant] may have questioned the process of what she should do and [S1] challenged her or she challenged [S1] . . . regarding the EEO process."
With respect to the assessment report, S1 stated that she rescinded the report because it was not a good report, did not contain valid information, and sent the wrong message. According to S1, "EEO practitioners from other places . . . did this report and they didn't measure apples to apples." She stated that she "was concerned that we were sending the wrong message if EEOC or someone else came in . . . to look at our program because it says you make an assessment of Savannah River and its practices, not only your HR office, but the leadership also." S1 also stated that she discussed the matter with the Site Manager, that the Site Manager agreed with her recommendation to rescind the report, and that the HR Director was not involved in the decision.
In response to Complainant's assertion that they disagreed about giving a counselor's report to a complainant, S1 stated that she believed that the matter arose during the counseling process and that she told Complainant that they would give the report only when it was required. With respect to Complainant's claim that an EEO Counselor's Report was annotated to include a new allegation, S1 believed that the matter involved a complainant who asserted that she had not received a Notice of Right to File, the complaint file contained no documentation that the complainant had received a Notice, and Headquarters instructed S1 to reconstruct the file. S1 stated that the complainant raised an allegation against the EEO Office, not against a specific person. In addition, S1 asserted that Complainant was aware of all of the allegations in the complaint. She submitted a July 2, 2008, e-mail in which Complainant stated that she was attaching a revised EEO Counselor's Report "to reflect additional allegations."
FA told the EEO Investigator that, before signing an employee's "out processing" form, she checks to ensure that the employee's credit-card account has a zero balance. Because Complainant's account had been transferred to Complainant's new facility, she needed to check with the new facility before she signed Complainant's form. FA stated that the new facility responded to her inquiry and that she signed the form the same day that Complainant presented it.
E1 told the EEO Investigator that S1 instructed her to "shadow" Complainant and learn Complainant's job so that E1 would know what to do when Complainant was not at work. She stated that Complainant and S1 had "some problems" regarding interpretations of regulations. In that regard, E1 noted that she and S1 came from a different federal department, whose practices and policies were different from those of the Agency. According to E1, Complainant challenged S1 by pointing out the ways that things were done at the Agency, and S1 corrected Complainant.
Other Agency employees told the EEO Investigator that S1 "didn't trust anyone" and described her as "mean," "forceful," "condescending," and "defensive." Two employees thought that S1 played employees against one another.
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. Complainant timely requested a hearing. The Agency filed a Motion for a Decision without a Hearing on July 15, 2011, and Complainant, through her attorney, filed an Opposition to the Agency's Motion on August 1, 2011. On August 22, 2011, the AJ issued a decision granting summary judgment to the Agency. The AJ issued an amended decision, correcting typographical errors in the original decision, on September 12, 2011.
In her decision, the AJ found that summary disposition was appropriate because there were no genuine issues of material fact and the record was adequately developed. After outlining the undisputed material facts and viewing the evidence in the light most favorable to Complainant, the AJ concluded that Complainant failed to establish that the Agency subjected her to unlawful discrimination. She found that Complainant failed to establish a nexus between her protected EEO activity and the incidents at issue here. In that regard, the AJ noted that S1 was not working at the Agency when Complainant filed her 2006 complaint and that Complainant merely speculated that S1 and the HR Director were friends. Citing Montgomery v. Dept of the Army, EEOC Petition No. 03A00044 (Apr. 17, 2002), the AJ found that Complainant's objections to S1's interpretation and application of EEO regulations did not constitute protected EEO activity. On that point, the AJ noted that Complainant's disagreement with S1's approach was different from an employee's objections to discriminatory practices under the opposition clause of Title VII's anti-retaliation provision. Accordingly, the AJ concluded that Complainant failed to establish a prima facie case of reprisal.
The AJ also concluded that S1 rebutted Complainant's claims. In that regard, the AJ noted that S1 explained that she changed many processes and procedures when she came to the Agency. The AJ also noted that many employees, including individuals with no prior EEO activity, described S1 as "stern" or "forceful" in her approach to everyone.
In addition, the AJ found that Complainant failed to establish that the Agency subjected her to a hostile work environment. Noting that Title VII is not a general civility code, the AJ concluded that S1's alleged conduct, even if true, did not create an abusive working environment. The AJ further concluded that the alleged conduct was not sufficiently pervasive to alter the terms or conditions of Complainant's employment. The AJ found that, "based upon the undisputed facts, Complainant suffered no actionable adverse employment actions as a result of [S1's] changes or approach."
On October 19, 2011, the Agency issued a final order fully implementing the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the AJ erroneously granted the Agency's Motion for a Decision without a Hearing. Complainant asserts that the Agency failed to provide a comprehensive list of undisputed facts, that the AJ did not consider Complainant's evidence, and that there exist genuine issues of material fact. She also asserts, as she did in response to the Agency's Motion, that a hearing is necessary because "[t]he record is replete with numerous inconsistencies, contradictions, and evidence regarding the reasons for [Complainant's] treatment and actions taken against her." According to Complainant, '[t]he inconsistencies and weaknesses blatantly demonstrate pretext and prove that the Agency's proffered reasons are unworthy of credence."
In addition, Complainant argues that she established a nexus between her protected activity and her claims of reprisal. According to Complainant, management's behavior changed after she filed her EEO complaint, submitted and refused to rescind the assessment report, challenged S1's interpretation and application of EEO procedures, and complained of discriminatory treatment. She argues that there exist genuine issues of fact about whether the Agency's actions toward her would dissuade a reasonable employee from complaining about discrimination and whether she endured a hostile work environment. Complainant asserts that the Agency subjected her to adverse action and to treatment that was sufficiently severe to alter the conditions of her employment.
In response, the Agency argues that the AJ properly found that Complainant failed to establish a prima facie case of discrimination. The Agency argues that Complainant has not shown that any material facts are in dispute and has not established a nexus between her protected activity and the Agency's actions. Further, the Agency contends that Complainant's challenges to S1's interpretation and application of EEO regulations did not constitute protected activity. Noting that "it is not a right of employment to argue with one's boss," the Agency argues that Complainant has not shown that she suffered an adverse employment action. The Agency also argues that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show that the articulated reasons were pretextual.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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").
ANALYSIS AND FINDINGS
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant. The parties had an opportunity to engage in discovery, the record has been adequately developed, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and she responded to the Motion. Although the Agency's Motion did not provide a list of undisputed facts, its discussion of Complainant's claims provided enough information that Complainant could address a dispute of material fact in her response to the motion. Complainant disputes the AJ's findings of fact, but she has not shown that there existed a genuine issue of material fact that would warrant a hearing.
For the reasons discussed below, we find that, even assuming all facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision without a hearing.
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant generally must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. � 2000(e)-3(a).
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8.II.D at 8-11-16 (May 20, 1998).
We assume, for purposes of analysis and without so finding, that Complainant has established a prima facie case of discrimination based on reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, the September 17, 2009, Notice of Formal Counseling stated that Complainant failed to schedule interviews and failed to follow up with the vendor. FA stated that she needed to check with the facility to which Complainant's credit-card account had been transferred before FA could sign Complainant's "out processing" form. S1 stated that she spoke to Complainant about Complainant's remarks to the intern mentor because the remarks were unprofessional and that she made changes to the intern program to make it flow better. She believed that, as a manager, she had the right to decide how things should be done.
Complainant has not shown the articulated reasons to be pretextual. Even when viewing all of the evidence in the light most favorable to Complainant, we cannot say that the Agency took the actions at issue because of Complainant's protected EEO activity. The record reflects that, as the Director of the Office of Civil Rights, S1 wanted to manage the Office her own way and to require Agency employees to contact her rather than Complainant. The record also reflects that S1 was a difficult manager whom other employees found to be "forceful" and "condescending." Complainant has not put forth any persuasive evidence to show that her prior EEO activity motivated S1's actions toward her. On the contrary, the preponderance of the evidence establishes that personality conflicts and differences in management styles, rather than retaliatory animus, motivated S1's actions.
Complainant has asserted that S1 retaliated against her because she challenged S1 about the interpretation and application of EEO procedures. The record, however, reflects that Complainant's challenges constituted disagreements with the way that S1 managed the EEO program rather than objections to discriminatory practices. Compare Complainant v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014) (EEO Specialist engaged in protected activity when she objected to intranet site that parodied event commemorating history of Native Americans and suggested that "Christmas Social" be renamed "Holiday Social" to avoid appearance of endorsing one particular religion) and Hairston v. Dep't of Educ., EEOC Appeal No. 0120071308 (Apr. 15, 2010) (EEO Specialist engaged in protected activity when, after reviewing agency's EEO program, he recommended that agency comply with Commission directives by requiring EEO Director to report directly to agency head) with Montgomery v. Dept of the Army, EEOC Petition No. 03A00044 (Apr. 17, 2002) (EEO Specialist who objected to superior's management of EEO program did not engage in protected activity where Commission declined to find that management of program was an unlawful practice and EEO Specialist's objections constituted insubordination rather than opposition to unlawful practice). To the extent that Complainant's involvement in the assessment report constituted opposition to discriminatory practices, the evidence does support her allegation that S1 acted against her because of the report. Accordingly, we find that Complainant has not shown that S1's reactions to the disagreements and the report constituted reprisal for protected EEO activity.
Hostile Work Environment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. 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." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of the 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 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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 Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her protected activity. A finding of discriminatory harassment is precluded based on our determination that Complainant has not shown that the Agency's actions were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency discriminated against her on the basis of reprisal.
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 order, which implemented the AJ's finding of 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
July 18, 2014
Date
1 Although the Agency's letter accepting the complaint for investigation identified June 15, 2009, as the date of the incident, Complainant's formal complaint stated that the incident occurred on July 15, 2009.
2 Complainant stated that, in 2008, she attended a meeting where S1, a complainant, and others accused her of mismanaging a 2005 or 2006 complaint because the complaint file was with the EEO Counselor rather than in the EEO Office. Complainant told the people in the meeting that, pursuant to regulations, complaint files came to the SRO EEO Office only if the complainant filed a formal complaint. The other people in the meeting disagreed with her.
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0120120613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120613