Complainant,v.Dr. Rebecca Blank, Acting Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Sep 20, 2013

0120112114 (E.E.O.C. Sep. 20, 2013)

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

,
Complainant,

v.

Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120112114

Agency No. 09-54-00072

DECISION

On March 3, 2011, Complainant filed an appeal from the Agency’s January 25, 2011, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Biological Science
Technician, with the Center for Coastal Fisheries and Habitat Research, National Centers for
Coastal Ocean Science, National Ocean Service, National Oceanic and Atmospheric
Administration in Beaufort, North Carolina. During the relevant time Complainant’s first line
supervisor was Person A, Supervisory Oceanographer. Although not Complainant's
supervisor, Person B, Fishery Biologist, was given the task of assigning work to Complainant
and providing oral and written input to Complainant's supervisor

Complainant filed an EEO complaint dated December 8, 2008, alleging that the Agency
discriminated against her and subjected her to a hostile work environment in reprisal for prior
protected EEO activity when:

1. Complainant’s supervisor (Person A), the Project Leader (Person B), and Co-
worker 1 humiliated her during a June 24, 2008, meeting.

• On June 23, 2008, Complainant sent Person A an electronic mail
message bringing to her attention a conversation between Co-Worker 1
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and Co-Worker 2 making reference to her prior EEO complaint. The
following morning Complainant was called into a meeting with Person
A, Person B, and Co-Worker 1 in which her electronic mail message
was read out loud and it was concluded that she was trying to “police”
Co-Worker 1's behavior and that Complainant referring to Co-Worker
1's Affidavit to Complainant’s prior EEO complaint in her electronic
mail message sounded like she could be accused of creating a hostile
work environment for Co-Worker 1.

• Person A had the courtesy to speak with Co-Worker 1 and Co-Worker 2
separately and privately to discuss their comments made the previous
afternoon, yet chose not to meet with Complainant privately to discuss
the electronic mail message and held a meeting that became hostile,
intimidating, and humiliating.

2. During a September 24, 2008 FY08 accomplishments meeting, in an effort to
downplay Complainant’s accomplishments to justify assigning her the lowest
rating of all Branch employees, Person A requested that she rewrite some of her
publications' accomplishments.

3. On her FY08 performance rating, Person A referred to the June 24, 2008
meeting, as an example of her inability to “articulate her concerns or what she
wanted changed,” wrote her up for the same April 2008 cancelled project for
which she was written up in her Mid-Cycle/Progress Review, and wrote her up
for not checking to see if editing a “Look Ahead” electronic mail document
“was an appropriate use of her time.” Complainant ultimately received a very
low FY08 performance rating score of 56.

4. Complainant’s leave request for several weeks off under the Family Medical
Leave Act to assist with her father's after-surgery care was not approved until
the second week of the leave. The approval followed her electronic mail
message to Person A asking if her request was going to be approved or if she
was to stay on “AWOL” status, and five days after she notified her EEO
Counselor that she was going to file this complaint.

5. When Complainant found a course to further her skills, Person A denied the
opportunity citing that the course would more than likely not be held and was
below her skill level. Complainant’s only training has been beside Co-Worker 1
or lecture and reading assignments from Person B.

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). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
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§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

On appeal, Complainant notes that she filed two other EEO Complaints in addition to the
subject complaint. Specifically, Complainant notes that she filed her first EEO complaint
before the subject complaint and a third EEO complaint after the subject complaint.
Complainant discusses several of the issues in these other two complaints. Complainant
provides several electronic mail messages and documentation surrounding her employment.
Among the documentation provided, Complainant provides a transcript of the June 24, 2008
meeting described in issue (1).

In response to Complainant’s appeal, the Agency argues that the documentation Complainant
provided surrounding events that occurred after the relevant time frame of the underlying
complaint are not relevant. In addition, the Agency argues that the transcript and digital
recording of the June 24, 2008 meeting should not be accepted on appeal. Moreover, the
Agency argues that it properly determined that Complainant was not subjected to retaliation
and/or harassment in reprisal for engaging in EEO activity.

ANALYSIS AND FINDINGS

As a preliminary matter, we first address Complainant's submission of new evidence on
appeal. As a general rule, no new evidence will be considered on appeal unless there is an
affirmative showing that the evidence was not reasonably available prior to or during the
investigation. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Ch. 9, § VI.A.3. Here, Complainant failed to make such a showing.
Accordingly, we decline to consider this new evidence on appeal. Even if we considered such
evidence, it would not change the decision in this appeal.

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”).

With regard to issue (1), Complainant stated that the June 24, 2008 meeting came about as a
result of an electronic mail message she sent to Person A asking for her assistance in dealing
with Co-Worker 1 and Co-Worker 2, following an incident in the lab on the afternoon of June
23, 2008. Complainant stated that during the June 23, 2008 incident, she and Co-Worker 2
were having a conversation, when he changed the subject to something about discrimination.
Complainant stated that Co-Worker 1 joined the conversation to distinguish the difference
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between an EEO complaint and discrimination. Complainant stated at that point she ceased
participation in the conversation and concentrated on her tasks. Complainant stated that Co-
Worker 2 was aware she had filed a previous complaint because he was a witness in the
investigation. Complainant stated that after the incident in the lab, she sent an electronic mail
message to Person A asking her assistance in ensuring this type of incident would not occur
again.

Complainant claimed that at the June 24, 2008 meeting, she pointed out specific instances of
things that were bothering her, such as tidying up the work space after the completion of tasks,
turning off electrical equipment, and just being courteous to each other. Complainant stated
that Person A, Person B, and Co-Worker 1 laughed at her and told her she was being “petty.”
Complainant alleged that she was treated differently than her co-workers because Person A
stated that she had already spoken to Co-Worker 2 privately before the meeting began.
Complainant noted that Person A also stated that because Complainant mentioned Co-Worker
1's affidavit in the June 23, 2008 electronic mail message, that she was creating a hostile work
environment for Co-Worker 1 and that he could file a complaint against her. Moreover,
Complainant stated that she did not understand why Person B was in attendance at the meeting,
other than to assist Person A in humiliating her.

In his declaration, Co-Worker 1 stated that on June 23, 2008, Co-Worker 2 came into his
office to get a cup of coffee. Co-Worker 1 explained that at this time Complainant was in the
lab working at the bench. He stated that after Co-Worker 2 poured his coffee he went back
into the lab to get some cream out of a refrigerator. Co-Worker 1 acknowledged that the
refrigerator was one in which they store chemicals and the cream should not have been in it.
He stated that Complainant made a comment about the cream being in the chemical
refrigerator. Co-Worker 1 stated that after Complainant's comment, Co-Worker 2 went back
into his office and jokingly said, he did not have any cream in that refrigerator and if anyone
says he did it is “defamation” or words to that effect. Co-Worker 1 stated that Complainant
told Co-Worker 2 he could put the cream in her office and Co-Worker 1 noted that he jokingly
said if Co-Worker 2 did that then he had to put some cream in Co-Worker 1’s office as well or
it would be discrimination.

Complainant then sent an electronic mail message to Person A regarding the June 23, 2008
incident. Complainant noted that for the past couple of weeks, every time she has asked Co-
Worker 1 to clean up after himself and remember to turn off equipment, he has made
comments about Complainant being some sort of “self appointed lab police.” Complainant
stated she does not appreciate those comments. Moreover, she stated that in light of the
current situation, (Co-Worker 1's Affidavit), she found the comments, even if they were said
in jest, inappropriate, unwarranted, unappreciated, and unprofessional. Complainant stated she
was bringing the matter to Person A’s attention so Person A can “put a stop to the comments
before it escalates and becomes a hostile working environment.”

As a result of Complainant’s June 23, 2008 electronic mail message, a meeting was held on
June 24, 2008, with Person A, Person B, and Co-Worker 1. In her declaration, Person A
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noted that the June 23, 2008 electronic mail was preceded by several weeks of Complainant
expressing displeasure to and about Co-Worker 1 in the lab. Person A explained the meeting
was held to work out the differences Complainant was having with Co-Worker 1. Person A
stated she invited Person B to the meeting because he tasked both Complainant and Co-Worker
1. Person A explained that if a change pertaining to work assignments needed to be made to
resolve Complainant's complaints about Co-Worker 1, Person B needed to be involved.
Person A stated that prior to the meeting, he spoke with Co-Worker 1 and Co-Worker 2
separately about the incident in the lab to hear their versions of the events independently.
Person A stated that they explained that they were talking and joking and that Complainant
injected herself into their conversation. Person A stated she cautioned Co-Worker 1 and Co-
Worker 2 to be more sensitive when someone comes upon their conversations. She stated she
also cautioned Co-Worker 2 about the safety infraction and instructed him to never use the
chemical refrigerator to store food. Person A stated that Co-Worker 2 was not needed at the
meeting because he was not involved in Complainant’s work assignments nor was he involved
with Complainant’s complaints about Co-Worker 1’s lab practices.

Person A stated that during the meeting she asked Complainant to articulate which lab practices
of Co-Worker 1 were upsetting to her. Person A noted that other than saying Co-Worker 1 did
not empty a cup of used pipette tips, she could not say what was upsetting her. Person A
stated she thought this was very “trivial” and was unhappy that she had disrupted four
employees' work to listen to something this “petty.” Person B also noted that at the meeting
Complainant was asked what was upsetting her. Person B stated Complainant had difficulty
expressing herself and finally said that she was upset Co-Worker 1 had not emptied a cup of
used pipette tips. Person B stated that he was “dumbstruck” at what Complainant identified as
the problem.

While Complainant objects to the fact that Peron A did not meet with her separately and read
out aloud the June 23, 2008 electronic mail message she sent to Person A regarding the
incident at issue, we find Complainant has failed to show that either action motivated by
retaliatory animus. Moreover, the Agency has presented legitimate, nondiscriminatory reasons
for having Person B present at the meeting.

With regard to issues (2) and (3), Complainant alleged that during a September 24, 2008 FY08
accomplishments meeting, Person A stated that what Complainant had written “was very heavy
in publications” and requested that she rewrite some of her publications' accomplishments.
Complainant stated that she never rewrote her publications’ accomplishments and Person A did
not ask her again to do so. Complainant acknowledged that her FY08 rating was 56 and was
higher than her FY07 rating of 49. Complainant stated the FY08 rating was less favorable that
the FY07 rating. Specifically, she noted that in FY07, Person A rated her performance
“Eligible” for a performance-based pay increase while in FY08 she rated Complainant’s
performance as “Eligible; however, there are performance deficiencies.” Additionally,
Complainant stated her FY08 rating should have been higher. Complainant claimed that in
order to justify such a low rating, Person A listed as a deficiency something she had already
listed as a deficiency in Complainant’s mid-year review, i.e., the comments about the cloning
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of DNA. Complainant argued that this should not have been listed in either place since she
stated she was not at fault and she stated that she never told Person B that she had done this
type of cloning using the reagents they were using.

In her declaration, Person A stated that Complainant's accomplishments were four pages long
and included complete citations for each of the publications to which she contributed. Person
A stated that some of these publications had been completed in a previous review period.
Person A explained that she needed to know how Complainant contributed to each of the
publications or projects listed on her accomplishment report. Thus, Person A stated that she
asked Complainant for a further explanation of her accomplishments. With regard to the
differences in the FY07 and FY08 ratings, Person A noted that FY07 was the first year they
were under the new pay banding system and she stated she was not completely familiar with all
the ramifications of all parts of the appraisal forms. Person A stated that she believed in FY07
that if she rated someone eligible with deficiencies that it would automatically trigger a
performance improvement plan (PIP) and she stated that she did not want to do that in
Complainant's case. However, Person A stated that after the FY07 rating period, it was
explained to her that this was not true and a PIP would not be automatically triggered if she
listed deficiencies. Thus, she stated that she listed Complainant’s performance deficiencies in
her appraisal. She noted that listing performance deficiencies was a way to assist employees
by identifying the areas that they needed to work on improving.

Complainant failed to show that Person A’s articulated reason for requesting that Complainant
rewrite some of her publications' accomplishment was a pretext for discrimination. Moreover,
Complainant failed to show that any of the Agency’s actions surrounding her FY08 rating were
based on her protected EEO activity.

With regard to issue (4), Complainant claimed that her FLMA leave request was not approved
until the second week she was actually on leave. The record reveals that on October 20, 2008,
Complainant informed Person A that she might have to take almost two weeks of leave to take
care of her father after his surgery. Person A stated she checked with Human Resources and
was told that family friendly leave was appropriate in this case, but that Complainant would
need to provide a letter from her father's doctor to support the request because of the length of
time Complainant was requesting. The record reveals that Person A informed Complainant on
October 20, 2008, that she would have to provide documentation from her father’s physician.
Person A explained that she left the country on official travel three days later and told
Complainant to give the necessary documentation to Person C, Acting Branch Chief, and she
would then approve the leave.

In her declaration, Person C stated that on October 20, 2008, Person A informed her that
Complainant had requested family friendly leave to assist her mother to care for her father
after he had surgery. Person C stated that since Person A was going out of the country she
advised her as Acting Branch Chief, that she would be responsible for approving the leave
request after Complainant submitted the required doctor's statement supporting the request.
Person C explained that since the Web-based Time and Attendance system was introduced at
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the lab, she did not get involved with leave approvals very often. Person C stated that the
web-based system they had was not particularly straightforward and she noted she had done
few leave approvals with it prior to this incident. Person C stated that once she received the
faxed document supporting Complainant's request, she informed Complainant by electronic
mail that her request was approved. Person C stated that she thought she entered her approval
into the system immediately after she sent Complainant the electronic mail informing her that
she approved her leave. Person C stated she did not know if she did something wrong or the
system failed. Person C stated she did not remember going in to the system on November 18
and approving the leave.

The record reveals Complainant provided the requested documentation on November 6, 2008.
In a November 7, 2008 electronic mail message to Complainant, Person C advised
Complainant that she would indicate her approval of the leave request in the electronic Time
and Attendance system. The record contains a November 7, 2008 electronic mail message, in
which Complainant thanked Person C for approving her leave request. The electronic time and
attendance system did not reflect the approval until November 18, 2008. There is no
indication Complainant was placed on AWOL.

With regard to issue (5), Complainant stated that she found a course to further her skills
presented by Duke University; however, Person A denied the opportunity citing that the course
would more than likely not be held and was below her skill level. In her declaration,
Complainant stated the course was not 100% what she was doing but she said it was heavily
weighted with molecular genetics instruction and that she would have learned new techniques
and gained a different perspective of the research if she attended. Complainant noted that there
were two co-workers (Co-Worker 3 and Co-Worker 4) in the Tester’s Branch who were
pursuing advanced degrees and the government was paying for their education.

Person A acknowledged that Complainant asked her if she could attend a summer course
conducted by Duke University Marine Laboratory. Person A told Complainant she would look
into the possibility. Person A explained that Person B contacted the professor teaching the
course and that the professor said it would not be of great value to someone who already has
lab experience. Person A stated that in order for the government to pay for a course, it must
be ensured the course supports the government’s mission. Person A noted that Co-Worker 3
and Co-Worker 4 have attended university courses paid by the government. Person A stated
that both Co-Worker 3 and Co-Worker 4 had prepared IDPs and the courses they were allowed
to take were in support of their respective plans. Person A noted Complainant has never
prepared an IDP. Moreover, Person A noted that Person B has done quite a bit of training
with Complainant. Person A noted that prior to coming to work for NOAA, Person B was a
professor at University of North Carolina at Chapel Hill.

In his declaration, Person B states that Person A was supportive of Complainant taking a
summer course and asked him to look into the course. Person B stated he contacted the
professor teaching the course and informed the professor of Complainant’s duties and
experiences. Person B noted that the professor responded via electronic mail stating the course
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was targeted “at students without prior genetic lab experience” and he stated that he did “not
think the course would be of great value for someone who has lab experience.”

Upon review, we find the Agency articulated legitimate, nondiscriminatory reasons for its
actions which Complainant failed to show were a pretext for discrimination. Moreover with
regard to her overall harassment claim, we find Complainant failed to show by a
preponderance of evidence that she was subjected to harassment. Specifically, we find
Complainant has not established by a preponderance of evidence that the conduct to which she
was subjected rose to the level of harassment, or was motivated by discrimination on the basis
of reprisal.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFRMED.

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).
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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

(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

September 20, 2013
Date