Crysta T.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor (Employment and Training Administration), Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120151724 (E.E.O.C. Dec. 20, 2017)

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

Crysta T.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor
(Employment and Training Administration),
Agency.

Appeal No. 0120151724

Agency No. 1304144

DECISION

On April 29, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 25, 2015, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-14 Supervisory
Immigration Program Analyst (IPA) at the Agency’s Employment and Training Administration
(ETA), Office of Foreign Labor Certification (OFLC) facility in Atlanta, Georgia. At that time,
Complainant's first line supervisors during the period in question included the Director of
Operations (DO) and the OFLC Administrator (OFLCA). The Director of Administration (DA)
provided authoritative guidance to National Office leadership, including Complainant, and was
Complainant’s witness regarding a prior EEO complaint.

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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On September 11, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and in reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. From June 14, 2010 to present, she has been given unreasonable timeframes for
completing work;
2. From June 14, 2010 to present, her supervisor made disparaging comments
about her in front of her peers;
3. From January 17, 2013 to March 4, 2013, she was subjected to increased
scrutiny regarding her management style;
4. On March 4, 2013, she was reassigned from the Administration Unit after only
being permitted to remain in that unit for 53 days, as opposed to her coworker,
who was allowed to stay for 90 days;
5. On August 8, 2013, she was ostracized from a meeting with other Operations
Management staff;
6. On August 8, 2013, her coworker encouraged and solicited staff to file
complaints regarding her return to the Audit Review unit as the Certifying Officer
(CO);
7. On August 20, 2013, her request for a reasonable accommodation was denied;2
8. On September 11, 2013, her supervisor sent her an e-mail asserting that she did
not follow a directive regarding the daily report, when in fact she had done so;
and
9. On November 8, 2013, she discovered that, without her knowledge, an
employee under her supervision was blamed for another employee moving
cubicles, which undermined her as a supervisor.

During the investigation, the DA stated that he believed the DO and OFLCA were increasingly
critical of Complainant compared to other employees and that the DO “noticeably single[d]"
Complainant out for "harsh and often humiliating public treatment." He also asserted that
Complainant’s race and sex were factors in this issue because he believed OFLCA has a negative
opinion of African-Americans and females. The DA stated that he strongly believed that
Complainant's prior EEO activity was a factor in this matter because management's negative
treatment of Complainant began after Complainant participated in protected EEO activity
involving another employee. Complainant’s prior EEO activity included a 2012 complaint
against DO for harassment.

After the investigation of the instant complaint, 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). In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The Agency decision found no discrimination.

2 Complainant did not allege that she was subjected to disability discrimination.
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The Agency found that Complainant had failed to prove that her race, sex, or prior EEO activity
motivated the actions at issue in the complaint. The Agency found that Complainant failed to
establish a hostile work environment, and with respect to Claims 5 and 7, which it analyzed
under disparate treatment standards, Complainant had not established a prima facie case on any
bases and had not shown that the Agency’s reasons for its actions were a pretext for
discrimination or retaliation.

With respect to Claim 1, Complainant stated that she was given timeframes by DO and other
National Office staff regarding internal management reports and Corrective Action Plans (CAPs)
on a daily, weekly, and/or monthly basis. Complainant reported that the timeframes varied, and
claimed that the alleged harasser could "mask the intent to harass by changing the day, time, or
frequency of the request." She said management’s actions regarding the varied requests, which
sometimes took months to fulfill, created discord and chaos in the workplace, and triggered her
anxiety, fear, depression, nausea, in addition to other physical and mental ailments. She added
that she believed her race was a factor in this claim based on firsthand observation of
management's treatment of other African-American females in the office. Complainant also
stated that she believed her sex was a factor in this action because the DA repeatedly harassed
and pitted female executives against one another. Finally, she believed her prior EEO activity
was a factor in this action because a coworker told her that DA stated that African-American
females file EEO complaints and are "disloyal" when they "get in trouble."

The DO denied that Complainant's, race, sex, and prior EEO activity were factors in this action.
The DO explained that the work was fast paced and that the strict deadlines depended on the
stakeholder who was seeking information, whether it was a Congressional inquiry, one from the
Secretary of Labor, or from an employer. DO added that the timeframes for standard reports
occurred either weekly or bi-weekly. The Agency determined that, based on Complainant and
the DO's statements, the deadlines in question were for the entire office, not just Complainant,
and that one incident requiring Complainant to prepare a summary one day earlier than she had
been previously informed does not equate to a hostile work environment.

Regarding Claim 2, Complainant alleged that the DO made comments such as calling
Complainant too sensitive and claiming that Complainant would cry when she learned that she
would be transitioned to Audit Review. Complainant claimed that the DO told Complainant that
Complainant's team was dissatisfied with her and that they had complained to DO. Complainant
claimed that the DO told Complainant that her team wanted her to become ill. DO responded that
it was Complainant who stated during a conversation that she was a sensitive person. DO also
maintained that she did not make comments about Complainant crying or that Complainant's
team wanted her to become ill. The Agency concluded that Complainant did not show that the
alleged comments were made and that even if the incidents occurred as alleged, the conduct
described was neither severe or pervasive.

As for Claim 3, Complainant complained that while she was serving as the Appeals CO, the DO
scrutinized the work of the Appeals Team, but prior to her assignment, the DO had no
involvement with the team. The DO asserted that Complainant was never subjected to strict
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scrutiny. She explained that while Complainant was on leave, she supervised Complainant's team
and made substantial changes to meet the needs of the organization. Due to those changes, the
DO assisted Complainant during the six to eight-week transition period back to her position as
CO. The Agency found that Complaint’s allegations of undue scrutiny were not substantiated
and noted that the DA, who was Complainant’s supervisor, did not state that such scrutiny
occurred.

With respect to Claim 4, Complainant alleged that even though at her request she was removed
from the Operations Unit for "general medical reasons" and placed on a 90-day rotational
assignment in the Administration Unit, she was returned in 53 days and denied the requested
accommodation to be permanently reassigned from her supervisor. The Agency determined that
Complainant’s request was properly denied since a supervisory transfer is not a reasonable
accommodation.

Regarding Claim 5, Complainant alleged that on at least two occasions, the DO held meetings at
which the other three Supervisory IPAs were in attendance, but Complainant was not included.
Complainant stated that she believed her race was a factor in this action because she is the only
African-American CO in the Operations team under DO's leadership. She believed that her prior
EEO activity was a factor because such actions did not start until after she complained in 2009.
The DO asserted that Complainant was not ostracized. DO explained that not every manager
participated in every Operations meeting, and that meetings not involving Complainant's unit,
the Audit Review Unit, or her work product, did not require her attendance. The Agency found
that there was no evidence to show discrimination motivated the DO’s decision.

As to Claim 6, Complainant complained that the Acting Audit Review Certifying Officer (CO)
incited the unit employees to file grievances against her when informing them that the Audit Unit
CO was changing and if there were any questions or concerns or if they had any issues to bring
them up with their union steward. The Agency found that Complainant’s allegations rested on
her interpretation of the comments and that the record revealed no employee grievances had been
filed.

With respect to Claim 7, the Agency determined that Complainant's request for a reasonable
accommodation was properly denied because the documentation was provided by Complainant's
physician who had not seen Complainant. Complainant has not alleged discrimination on the
basis of disability.

As to Claim 8, the Agency found that Complainant was not injured nor was management’s
actions hostile when the DO sent Complainant a directive to complete a task that she had already
performed. The DO explained that the email exchange between Complainant and the DO
crossed each other and after the DO received notice that Complainant had complied, she
immediately called and spoke to Complainant and clarified all misunderstandings. The Agency
concluded that there was no evidence of discrimination.

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Regarding Claim 9, Complainant stated that it appeared that National Office senior management
officials, the DO, and a Supervisory IPA for Group 2 moved an IPA in Group 2, and blamed a
Lead Immigration Program Analyst who worked for Complainant for the displacement.
Complainant, however, did not state any reasons for why she believed her race, sex, and/or prior
EEO activity were factors in this action, and the Agency concluded that no discrimination,
harassment, or retaliation occurred.

In sum, the Agency decided that the challenged actions did not support Complainant's claim that
management created a discriminatory hostile work environment or were motivated by
discrimination. The Agency found that Complainant failed to show that the challenged actions in
the complaint were severe or pervasive.

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 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”).

We find that the Agency’s investigation of the complaint was adequate and the claims were
properly defined by the Agency. We find that the Agency’s reasons for the actions at issue in this
complaint were legitimate and nondiscriminatory. We find that Complainant has failed to show
that the Agency’s reasons were false or a pretext for discrimination or retaliation. Since
Complainant failed to show that any of the Agency’s actions were motivated by discrimination
or retaliation, we find that Complainant failed to establish she was subjected to a discriminatory
hostile work environment.

CONCLUSION

The Agency’s decision finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

December 20, 2017
Date