0520180197
04-24-2018
Crysta T.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor (Employment and Training Administration), Agency.
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.
Request No. 0520180197
Appeal No. 0120151724
Agency No. 1304144
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120151724 (December 20, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
Complainant worked as a GS-14 Supervisory Immigration Program Analyst (IPA) at the Agency's Employment and Training Administration (ETA), Office of Foreign Language Certification facility in Atlanta Georgia.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal when: (1) from June 14, 2010 to present, she was given unreasonable timeframes for completing work; (2) from June 2010 to present, her supervisor (Director of Operations - DO) made disparaging comments about her to 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 90 days; (5) on March 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; (7) on August 20, 2013, her request for reasonable accommodation was denied;2 (8) on September 11, 2013, her supervisor sent her an email asserting that she did not follow a directive regarding the daily report, when she had in fact 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 supervisor.
Complainant did not request a hearing and the Agency issued a final decision based on the report of investigation, concluding that Complainant was not subjected to discrimination or a hostile work environment. Our previous decision affirmed the Agency's decision. Complainant has now requested reconsideration of that decision.
ANALYSIS
Disparate Treatment
With respect to Complainant's claims of disparate treatment, where, as here, a complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, non-discriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Here, management witnesses articulated legitimate and non-discriminatory reasons for the disputed actions which Complainant failed to show were false or a pretext for discrimination or reprisal. In claim 1, the deadlines were for the entire were for the entire office, not just Complainant. The supervisor denied making the comments raised in claim 2, and the Agency concluded the conduct was neither severe nor pervasive. As to claims 3, 4 and 7, Complainant did not assert that she was denied accommodation for a disability. It was noted that not every manager attended every meeting held by DO (claim 5). The record revealed that no grievances were filed against Complainant (claim 6). As to claim 8, the Agency explained that an email exchange between Complainant and DO crossed each other and after DO found out Complainant had completed the task, she immediately called Complainant and clarified the misunderstanding. Beyond her bare assertions, Complainant failed to prove, by a preponderance of the evidence, that these proffered explanations were pretext designed to masked discriminatory or retaliatory animus.
Harassment
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, race, sex or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
As already determined, Complainant has not shown that the actions complained of either involved or were based on her protected bases or EEO activity. As such, she cannot support her claim of a discriminatory/retaliatory hostile work environment.
In her request for reconsideration, Complainant argues that not all of her witnesses were interviewed. If Complainant had felt that the report of investigation was inadequate, she should have opted to have a hearing to ensure that all of the information she desired was considered.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120151724 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2018
__________________
Date
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.
2 Complainant did not allege that she was subjected to disability discrimination.
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