EEOC Appeal No. 0120150376
03-29-2017
Dona A. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dona A.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120150376
Hearing No. 541-2013-00095X
Agency No. DEN-12-0096-SSA
DECISION
On October 30, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 7, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant worked as an Attorney-Advisor at the Office of Disability Adjudication and Review (ODAR) in Colorado Springs, Colorado. On January 30, 2012, Complainant filed an EEO complaint in which she alleged that the Hearing Office Chief Administrative Law Judge, her second-line supervisor at the time (S2) and the Hearing Office Director (HOD), her first-line supervisor from 2009 through July 2012 (S1a), and other management officials discriminated against her on the bases of race (Caucasian), disability (sleep apnea, depression), age (52), and reprisal (the instant complaint) between August 2009 and August 2012. Her claim consists of the following incidents:2
1. Between August 2009 and May 2012, S2 and other officials subjected her to discriminatory harassment because of her age, disability and current EEO complaint.
a. Since August 2009, S2 had expressed her dislike for Complainant and had treated her differently than other employees, assigning her a mentor who could not provide the necessary training and consequently scrutinizing her work more intensely than that of other attorney-advisors.
b. On an unspecified date in August 2009, S2 went around the office waving documents around and making derogatory remarks about Complainant's work.
c. On an unspecified date in the Fall of 2009, S2 advised the former HOD to "keep Complainant at arm's length" because of accusations Complainant had made that the former HOD had sexually harassed her.
d. In June or July 2010, S2 made the comment that Complainant was more concerned with her personal life than her work.
e. Since May 10, 2011, S2 had not responded to Complainant's offer of providing interim support to another work group within the ODAR by serving as a Group Supervisor on a temporary basis.
f. On June 14, 2011, after Complainant was the only employee who submitted an application for the Group Supervisor position for her work group, S2 talked another employee into applying in an attempt to sabotage her candidacy.
g. Since August 2011, after Complainant had been selected as Group Supervisor for her work group, S2 had forced Complainant to supervise twice as many employees as other Group Supervisors as well as act as liaison between the Administrative Law Judges (ALJs) and the staff.
h. On September 24, 2011, S2 had made a derogatory referral with regard to Complainant's application for an ALJ position.
i. On February 27, 2012, in response to Complainant's inquiry regarding a hardship transfer, S2 reacted angrily and threatened Complainant's prospects for career advancement.
j. On May 5, 2012, the Regional Management Officer (RMO) mishandled a reference call when Complainant was applying for another Group Supervisor position, effectively undermining her ability to be considered for that position.
k. On May 22, 2012, S2 came into Complainant's office to badger Complainant about the work product of one of her subordinates, blaming Complainant for that employee's inaccurate decision writing and failure to follow instructions.
l. On August 2, 2012, S2 excluded Complainant from a planning meeting for a workshop training session for claimant representatives.3
2. On April 25, 2012, S1a discriminated against her on the bases of age, disability and reprisal by issuing her a negative mid-year performance appraisal.
3. On July 6, 2012, S1a discriminated against her on the bases of race and reprisal by forcing her to resign involuntarily from her position as Group Supervisor and to accept a position as a Senior Attorney-Advisor.
4. On August 2, 2012, S1a or S2 retaliated against her for filing the instant EEO complaint by interfering in the selection process for a Group Supervisor position in the Kansas City ODAR to such an extent that she was not selected for the position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On November 21, 2013, the AJ granted the Agency's motion for sanctions and dismissed the hearing request on the grounds that Complainant failed to cooperate with a discovery order issued on October 24, 2013. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The incidents comprising Complainant's discrimination claims are set forth in detail below.
Harassment
Incident 1(a): Complainant averred that since 2009, S2 had expressed her dislike for Complainant and had treated her differently than other employees, assigning her a mentor who could not provide the necessary training and consequently scrutinizing her work more intensely than that of other attorney-advisors. She averred that S2 assigned her a mentor who was not experienced in handling her first case assignment, that S2 threatened her job upon her completion of that first case, and that in July of 2009, S2 threatened her that she would not have a job if she did not "get her act together." Exhibit (Ex.) Ex. 6, p. 2, �� 9-12. S2 denied that she ever expressed a dislike for Complainant and responded that she was not involved in selecting Complainant's mentor. S2 similarly denied that she ever made threats or disparaging comments about Complainant. IR 7, p. 2, �� 6-9.
Incident 1(b): Complainant averred that on an unspecified date in August 2009, S2 went around the office waving documents and making derogatory remarks about her work. She admitted that she did not personally observe S2 engaging in that conduct but opined that her former Hearing Office Director (HOD), and her first-line supervisor from 2009 through July 2012 (S1a), might have observed S2's conduct in this regard. Ex. 6, p. 2, � 13. S2 denied that she disparaged the work of any employee in the manner alleged by Complainant. Ex. 7, p. 5, � 18. The former HOD and S1a both denied observing, witnessing, or otherwise having knowledge of the incident. Ex. 8, p. 3, � 16; Ex. 9, p. 2, � 8.
Incident 1(c): Complainant averred that on an unspecified date in the Fall of 2009, S2 advised the former HOD to "keep Complainant at arm's length" because of accusations Complainant had made that the former HOD had sexually harassed her. She averred that a temporary employee whose term was not being extended had told S2 that the former HOD had sexually harassed Complainant. Complainant further stated that although S2 did not believe the former employee, S2 nevertheless warned the former HOD not to meet with Complainant with the door closed and to deal with Complainant at arm's length. In addition, Complainant stated that the former HOD shared this information with her in the presence of another employee and warned Complainant never to tell S2 that he had done so. Ex. 6, pp. 2-3, � 14. S2 and the former HOD responded that this allegation was totally incorrect and the former HOD denied ever harassing any employee, sexually or otherwise. Ex. 7, p. 5, � 19; Ex. 9, p. 2, � 9. S1a averred that as Complainant's first-line supervisor, she was never made aware of the alleged occurrence. Ex, 8, p. 3. � 17.
Incident 1(d): Complainant averred that in June or July of 2010, S2 made the comment that Complainant was more concerned with her personal life than her work. Complainant stated that she had gone to India to work on a humanitarian project between April and May of 2010, and then when she returned, she had confided in S2 that she was concerned about whether she would be able to adopt a child from India, and that in June or July of 2010, when S2 was contacted for a reference check, she told the individual seeking the reference check that Complainant was more concerned with her personal life than with her job. Ex. 6, p. 3, � 18. S2 denied that she ever made the remark that Complainant had attributed to her. Ex. 7, p. 4. � 16. S1a stated that Complainant had never talked to her about traveling to India other than her work and her experiences there. Ex. 8, p. 3, � 18.
Incident 1(e): Complainant averred that since May 10, 2011, S2 had not responded to her written offer to providing interim support to another work group within the ODAR by serving as a Group Supervisor on a temporary basis. Ex. 6, p. 2, �� 2-3. S2 denied that this was true. She stated that she did not respond directly to Complainant, but rather she conveyed a message through Complainant's chain of command for her offer of assistance, Ex. 7A, pp. 2-3, �� 6-7.
Incident 1(f): Complainant averred that on June 14, 2011, after Complainant was the only employee who submitted an application for a Group Supervisor detail for her work group, S2 talked another employee into applying in an attempt to sabotage her candidacy. Ex. 6, p. 3 � 18. S2 responded that although the ODAR was soliciting for a Group Supervisor detail on June 7, 2011, the opportunity arose to fill the position on a permanent basis the following day. Consequently, neither Complainant nor any other employee was selected to fill the detail. S2 also stated that she recommended Complainant for promotion to Group Supervisor and that Complainant did, in fact, receive the permanent promotion. Ex. 7, p. 6, � 22; Ex. 7A, p. 3, � 8.
Incident 1(g): Complainant averred that since August 2011, after she had been selected as Group Supervisor for her work group, S2 had forced Complainant to supervise twice as many employees as other Group Supervisors, as well as act as liaison between the ALJs and the staff. However, she agreed with S1a's sworn statement that on May 7, 2012, a new Group Supervisor joined the management team. Ex. 6, p. 5, � 27; Ex. 8, p. 2, � 6. S2 responded that until mid-May 2012, ODAR had only one Group Supervisor and that individual was responsible for the work of twenty employees. S2 further stated that S1a had held the position of Group Supervisor until her promotion to Hearing Office Director in July 2011. She reiterated that it was not unusual for a Group Supervisor at ODAR to supervise twenty or more employees. Ex 7, p. 4, � 17.
Incident 1(h): Complainant averred that on September 24, 2011, she discovered that S2 had made a derogatory referral with regard to Complainant's application for an ALJ position. She stated that she was on three certificates for consideration as an ALJ and had been interviewed. She also stated that she not selected while candidates with lower scores had been selected. She further averred that when she received the packages of selection-related documents that she had requested under the Freedom of Information Act, she discovered a referral made by S2 that she characterized as "very derogatory," and "vindictive." Ex, 6, p. 4, � 23. S2 responded that she had never seen a copy of the alleged derogatory referral that Complainant cited, and that she recalled that she did not give Complainant an unqualified referral. S2 noted that she had given Complainant high marks in some categories and that she had simply responded to specific questions and provided an assessment of her observations of Complainant in work-related areas. Ex. 7, p. 6, � 21. S2 also averred that she tried to give Complainant a morale boost after Complainant learned that she had not been selected for the ALJ position. Ex. 7, p. 4, � 15.
Incident 1(i): Complainant averred that when she raised the possibility of requesting a hardship transfer to the Kansas City ODAR, S2 reacted angrily and threatened Complainant's prospects for career advancement, and that this confrontation took place on February 27, 2012. Ex. 6, pp. 4-5, � 25; Ex. 29. S2 denied that she made threats against Complainant or otherwise pressured Complainant into making a decision about whether to request a transfer. S2 also stated that on May 5, 2012, she received an email from Complainant thanking her for her understanding and patience, and advising her that she would not be pursuing the hardship transfer. Ex. 7A, pp. 3-4, � 11. S1a, who was present at that meeting, averred that although S2 had asked Complainant several times whether she was going to press ahead with her hardship transfer request, S2 had done so in a professional, non-hostile manner. Ex. 8, p. 4, � 25; Ex. 8B, p. 2, � 4.
Incident 1(j): Complainant averred that on May 5, 2012, the RMO mishandled a reference call made in connection with Complainant's application for another Group Supervisor position, effectively undermining her ability to be considered for that position. In particular, she averred that she was informed by her new first-line supervisor at the time (S1b)4 that the RMO had publicly stated that Complainant would never be a Hearing Office Director as she was not reliable, and that the RMO's statement was evidence of retaliation for her having filed her EEO complaint in January 2012. Supplemental Investigative Report (SIR): Ex. 2, �� 25, 27, 28. S1b averred that he attended a meeting with the RMO at which the RMO reported that S2 had called him and asked him whether she had to provide a reference, telling him that she could not give anyone a positive reference for Complainant. S1b also stated that the RMO made a statement to the effect that with such a negative assessment by S2, Complainant would never be a Hearing Office Director. SIR, Ex. 7, p. 2, � 8. He further stated that he did not believe that the RMO was evidencing any hostile feelings toward Complainant. SIR: Ex. 7, p. 2, � 9. The RMO denied making the statement that Complainant was too unreliable to be a Hearing Office Director and averred that he was asked to provide a reference check statement concerning Complainant. SIR: Ex. 8, pp, 1-2, �� 4-10.
Incident 1(k): Complainant averred that on May 22, 2012, S2 badgered her regarding the work product of one of her subordinates, and blaming her for that employee's inaccurate decision writing and failure to follow instructions. Complainant maintained that S2 accused her of trying to make her look bad in front of the Regional office. Ex. 6, p. 5, � 26. S2 responded that she was having difficulty editing a decision and had sent an email to the management team asking why the decision writers who usually processed her cases had not been given this assignment. S2 averred that she received an email from Complainant that Complainant would address the errors with the writer. S2 denied that she ever accused Complainant of intentionally trying to make her look bad. Ex. 7, p. 9, � 31; Ex. 7A, p. 5, � 17. S1a averred that she had no knowledge of S2 accusing Complainant of making her look bad. Ex. 8, p. 4 � 26; Ex. 8B, p. 3, � 9.
Incident 1(l): Complainant averred that on August 2, 2012, S2 had excluded Complainant from a representative workshop training meeting for which Complainant had served on the organizing committee and had prepared a presentation. In particular, she averred that S1b had attended the meeting and had informed her that when S2 was asked whether Complainant should attend the meeting, she replied that Complainant was out of the loop and had not been writing for a long time. SIR: Ex. 2, p.4, �� 15-20. S2 averred that she could not recall telling the staff that Complainant was out of the loop and that she tried to assure that everyone interested would be included in future workshop presentations. SIR: Ex. 3, pp. 1-2, �� 3-12.
Incident 2: Complainant averred that April 25, 2012, S1a discriminated against her on the bases of age, disability and reprisal by issuing her a negative mid-year appraisal for her performance as a Group Supervisor. Ex. 6B, pp. 3-10, � 9. S1a responded that she completed Complainant's mid-year performance review in the normal course of business and that some of her performance elements showed strengths while others showed deficiencies. She further stated that she discussed each performance element with Complainant, and that she completed a second evaluation on June 6, 2012, as a follow-up to the first. S1a noted that while Complainant made improvements in some areas, she was still having concerns about Complainant's performance overall. Ex. 8B, p. 3, �� 7, 8; Ex. 25. S2 averred that she was not involved in preparing or reviewing Complainant's mid-year performance review. Ex. 7A, p. 4, � 16.
Incident 3: Complainant averred that on July 6, 2012, S1a discriminated against her on the bases of race and reprisal by forcing her to resign involuntarily from her position as Group Supervisor and to accept a position as a Senior Attorney-Advisor. Ex. 6A, p. 1, �� 1, 2. S1a responded that Complainant had been struggling in her position as a Group Supervisor during her probationary year, that she had closely monitored and counseled Complainant throughout the year on her performance issues, and that in lieu of termination from that position, she offered Complainant the opportunity to resign and return to her previous position of Senior Attorney-Advisor. She further stated on July 5, 2012, Complainant opted for the voluntary transfer and was accordingly reassigned based on her request. Ex. 8A, pp. 1-3, �� 5-13, 15-19; Ex. 38; Ex. 39. S2 averred that she was not involved in the decision to reassign Complainant in July 2012. Ex. 7A, p. 1, � 4.
Incident 4: Complainant averred that on August 2, 2012, she became aware that she had not been selected for a Group Supervisor position in the Kansas City ODAR, and that her nonselection was due to interference in the selection process by S2, S1a, and other managers in the Colorado Springs ODAR. SIR: Ex. 2, p. 2, � 11. The documents pertinent to the selection process indicated that Complainant and the Selectee both made the best-qualified list and were both interviewed, and that the Selectee was given the highest score among the applicants. SIR: Ex. 25; Ex. 26; Ex. 29; Ex. 31. The Hearing Office Director for the Kansas City ODAR (HOD-KC) averred that she had conducted the interviews, that Complainant's interview had gone poorly, and that the Selectee's interview had gone very well. She also noted that she had observed typographical errors on Complainant's application. The HOD-KC ultimately recommended the Selectee to the Chief ALJ of the Kansas City ODAR. SIR: Ex. 5, pp. 1-2, �� 4-10; Ex. 13, pp. 1-3, �� 5-16. She averred that she never contacted Complainant's supervisor because Complainant was not one of the two best-qualified candidates. SIR: Ex. 13, p. 3, � 12.
ANALYSIS AND FINDINGS
Standard of Review
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").
Dismissal of Complaint as a Sanction
At the outset, we address Complainant's contention on appeal that the AJ abused her discretion in dismissing the hearing request. Complainant argued that because of a medical condition that required hospitalization, she was unable to complete a number of interrogatories by the deadline imposed by the AJ, and that it was not until after she submitted those interrogatories that the Agency moved for sanctions. The Agency responded that Complainant, an attorney herself who was represented by Counsel, failed to inform the AJ or the Agency of the two-day hospital stay that allegedly prevented her from timely complying with the AJ's discovery order for more than three weeks after the deadline had passed.
Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. United States Postal Service, EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S. v. Dept. of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. � 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). As we pointed out in Trina C, however, the Commission has found abuse of discretion by the AJ under a variety of circumstances. See Frederick A. v. Dept. of the Navy, EEOC Appeal No. 0120140377 (June 15, 2016) (dismissing complaint where Complainant's partial response did not rise to the level of contumacious conduct); Madaris v. U. S. Postal Service, EEOC Appeal No. 0120131585 (Aug. 13, 2013) (taking testimony by telephone absent exigent circumstances or a joint request from the parties); Duckwiley v. General Services Admin., EEOC Appeal No. 0120103514 (Feb. 4, 2011) (excluding claim accepted for processing by the Agency and referred for investigation); Santos v. Dept. of Agriculture, EEOC Appeal No. 0120064263 (Sept. 26, 2008) (issuing a decision without a hearing when material facts remained in genuine dispute).
In each of the aforementioned precedents, the circumstances surrounding the AJ's action suggests that a certain level of egregiousness in the AJ's conduct is necessary to support an abuse-of-discretion finding. Here, Complainant did not apprise the AJ or the Agency of the reason for her failure to comply with the AJ's order regarding submission of interrogatories until more than three weeks after the deadline for compliance with that order had passed. Consequently, the AJ's decision to grant the Agency's motion for sanctions and dismiss Complainant's hearing request does not rise to the level of egregiousness that has typically warranted a finding of abuse of discretion in our prior decisions. We therefore agree with the Agency that the AJ acted within her discretion in ordering the dismissal of Complainant's hearing request. We now move on to the merits of Complainant's appeal.
Harassment
Harassment of employees that would not occur but for their membership in statutorily protected groups is unlawful if sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998). To establish a claim of harassment Complainant must initially 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 classes; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
In this case, Complainant has established that she belongs to three statutorily protected classes: race, disability, and age. She is also eligible for protection against reprisal by virtue of having filed the complaint now before us. As to whether Complainant was subject to unwelcome verbal or physical conduct, we find that, with respect to incidents 1(a) through 1(f), 1(h), and 1(k), the conflicting statements made in the affidavits of the various witnesses preclude a determination that the any of these incidents had, in fact, occurred as Complainant had alleged. Beyond her own assertions, Complainant has not presented any affidavits, declarations, or sworn statements from other witnesses, or documents that show otherwise.
We do find, however, that with respect to incident 1(g), Complainant had been supervising nineteen subordinates until May of 2012. We also find, with respect to incident (1)(i) that a discussion did take place between Complainant and S2 in connection with Complainant's request for a hardship transfer to the Kansas City ODAR. As to incident 1(j), the record is sufficient to establish that on May 5, 2012, a conversation did take place between S2 and the RMO concerning a reference check for Complainant. Finally, we find that with respect to incident 1(l), the record is sufficient to establish that S2 did make the statement that Complainant was out of the loop and should not be included in the training workshop planning meeting. Consequently, Complainant has satisfied the first two prongs of the harassment test as to incidents 1(g), 1(i), 1(j), and 1(l).
We now turn to the third prong, under which Complainant must establish, by a preponderance of the evidence, the existence of an unlawful motive attributable to S2, S1a, or any other official named in her complaint, and if she fails to do so, the harassment inquiry ends. See e.g. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132795 (June 17, 2015) (The focus of the inquiry always remains on the motivation of the named officials, even if their business judgment turns out to be incorrect, [and] if Complainant fails to establish the existence of a discriminatory or retaliatory motive on the part of any named official, the Commission's inquiry will end without the need to determine whether any of those incidents are severe or pervasive enough to rise to the level of harassment).
With regard to incident 1(g), S2 had stated that it had been routine in the office for Group Supervisors to have up to twenty subordinates and to engage in multiple roles such as liaison to the ALJs. She also stated that S1a had supervised twenty staff members before she was promoted to Hearing Office Director and that Complainant had done so from when she was first promoted in August 2011 through May 2012. Complainant has not presented any documents or sworn statements that contradict S2's assertion that supervision of up to twenty employees was part of the normal routine at the Colorado Springs ODAR.
As to incident 1(i), a meeting had taken place on February 27, 2012, between Complainant and S2, with S1a in attendance. The subject of the meeting was whether Complainant was going to request a hardship transfer. According to S1a, S2 had pressed Complainant on the matter, asking her several times whether or not she intended to do so, but had done so in professional fashion, without hostility. Complainant has not submitted any evidence that conflicts with S1a's version of events. Based on the record before us, we find no inconsistencies in the sworn statements of S2 and S1a or any other indications that either S2 or S1a harbored a discriminatory or retaliatory animus toward Complainant with regard to incidents 1(g) and 1(i).
With regard to incidents 1(j) and 1(l), however, the record has revealed a number of inconsistencies involving the statements made by S2 in her various affidavits. Inadequately explained inconsistencies in the record are often indicative of unlawful motive. See Broderick D. v. U.S. Postal Service, EEOC Appeal No. 0120162220 (Jan. 11, 2017) (indicators of pretext include inconsistencies in the evidentiary record).
Throughout the course of the investigation of this complaint, S2 denied that she had issues or conflicts with Complainant. However, the supplemental investigative report includes an account of interactions between Complainant and S2 from an Assistant Regional Chief Administrative Law Judge (ARCALJ), who was tasked by the Regional Chief ALJ to go to the Colorado Springs ODAR in January 2012 to discuss that office's failure to implement an e-Business process and to attempt to unify the office's management team. The ARCALJ averred that he spent one week working in the Colorado Springs ODAR with S2, S1a and Complainant, who was a Group Supervisor at the time. SIR: Ex. 12, pp. 1-2, � 5. He further averred that he had observed S2 repeatedly criticizing Complainant over a misunderstanding concerning a directive that S2 had issued. He noted that S2 did not want to let the issue go, even after he suggested that they move forward in their effort to get the management team to unify. SIR: Ex. 12, p.2, � 6. He also stated that after he returned to his office, Complainant had informed him that the situation between her and S2 had gotten worse, that S2 had denied that she had issues with Complainant, and that S2 had accused the ARCALJ of being the cause of the problems she was having with Complainant. SIR: Ex. 12, p.2, �� 7, 9, 10,12. The ARCALJ describes a personality conflict between Complainant and S2. The ARCALJ has not identified a cause of that conflict. By his own admission, the ARCALJ had spent only a few weeks at the Colorado Springs ODAR observing Complainant and S2 interact. He neither averred nor pointed to any documentary evidence tending to show that the personality conflict between S2 and Complainant was caused by or was even related to S2's unlawful consideration of Complainant's race, age, disability, or EEO complaint. We therefore find that the affidavit of the ARCALJ is not sufficient to establish the existence of a discriminatory or retaliatory motive on the part of S2.
Regarding incident 1(j), S1b opined that S2 was providing negative references for Complainant to potential employers as a result of the EEO complaint that Complainant had filed against her in January of 2012. SIR, Ex. 7, p. 2 � 9. S1a stated that Complainant had talked to him repeatedly since May 2012 about how unfairly she had been treated by management since she filed her complaint. SIR, Ex. 7, p. 2 � 10. Again, the evidentiary value of S1b's statement is the lack of independent corroboration of his assertion that S2 had retaliated against Complainant. As S1b acknowledged, his assessment regarding retaliation came from his conversations with Complainant, not from any independent source. Moreover, the complaint itself establishes that the problems between S2 and Complainant predated the January 2012 filing of her EEO complaint by several years, which, under the particular circumstances of this case, precludes a finding of reprisal as a motivating factor. Consequently, we find that the affidavit of S1b is likewise insufficient to establish the existence of an unlawful motive on the part of S2 in relation to incident 1(j).
As to incident 1(l) which, as we previously noted, see n.3 supra., the Agency neither raised nor resolved in its final decision, S1b opined that S2 and S1a determined not to include Complainant in the final planning session for the upcoming training workshop. He averred that at the meeting he had attended, he heard S2 specifically state that Complainant was out of the loop for the training session. SIR, Ex. 7, pp. 1-2 � 6. He also averred that no one was more knowledgeable about the training than Complainant. SIR, Ex. 7, p. 2 � 7. Moreover, S2's own account of the matter was internally inconsistent. S2 stated at the outset that no one from the Colorado Springs ODAR was invited or permitted to attend the training unless they were a speaker or assisting in the conduct of the workshop. SIR: Ex. 3, p. 1 � 3. However, she never disputed that Complainant was on the organizing committee for the event and was assisting both her and the senior attorneys in the preparation of their presentations, which clearly falls within the ambit of assisting in the conduct of the workshop. SIR: Ex. 2, p. 3, �� 15-19. Consequently, we find that the reason given by S2 for excluding Complainant from the workshop planning meeting is not supported by the record, and we can now move on to the fourth prong of the harassment test with respect to this one incident.
In applying the fourth prong, we observe that the anti-discrimination statutes are not general civility codes designed to protect against the "ordinary tribulations" of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Complainant must therefore bear in mind that regardless of the existence of unlawful intent on the part of S2, routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a hostile work environment. Complainant v. Dept. of State, EEOC Appeal No. 0120123299 (February 25, 2013). Similarly, a single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Irvin C. v. Dept. of State, EEOC Appeal No. 0120141173 (Aug. 29, 2016).
The Commission has found that under certain circumstances, a single incident could be severe or pervasive enough to give rise to a hostile environment in and of itself. See Trina C, supra (male supervisor grabbed female employee around the waist and kissed her on the neck); Woolf v. Dept. of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), req. for recon. den. EEOC Request No. 0520090560 (Aug. 21, 2009) (male coworker forced his thigh between female employee's legs, put his mouth to her ear, and told her how gorgeous she looked); Hayes v. U.S. Postal Service, EEOC appeal No. 01954703 (Jan. 23, 1998), req. for recon. den., EEOC Request No. 05980372 (June 17, 1999) (male coworker stuck his tongue in female employee's ear). The Commission has likewise found that the use of a single racial epithet or slur in the workplace could also constitute harassment. See Yabuki v. Dept. of the Army, EEOC Request No. 05920778 (June 4, 1993) (employee of Japanese descent the subject of a comment by non-Japanese coworker that it was all [the employee's fault] that the Japanese were taking over American businesses).
What we have before us is essentially a single incident consisting entirely of a routine work-related matter, namely Complainant's exclusion from a planning session for an upcoming training workshop. Incident 1(l) fits neither scenario for establishing the existence of a hostile environment based on a single incident. Incident 1(l) does not come close to the severity or pervasiveness of the incidents found to constitute discriminatory harassment in Trina C., Woolf, Hayes, or Yabuki. Likewise, it is nothing more than an isolated occurrence concerning a work-related decision made by S2.
To summarize our findings on Complainant's harassment claim, we determine that Complainant has not established that she was subject to unwelcome conduct with respect to incidents 1(a) through 1(f), 1(h), and 1(k). We also determine that Complainant failed to establish the existence of a discriminatory or retaliatory animus on the part of S2, S1a, or any other official she named in her complaint concerning incidents 1(g), 1(i), and 1(j). Finally, we determine that with respect to incident 1(l), Complainant failed to establish that her exclusion from the training workshop planning session in August 2012 was severe or pervasive enough to rise to the level of harassment. Consequently, we find that Complainant failed to prove that she was subjected to a hostile work environment because of her race, age, disability, or EEO activity. We now move on to Complainant's disparate treatment claims.
Disparate Treatment
The Commission cannot second-guess an Agency's decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that S2 or any of the other officials identified in her complaint were motivated by unlawful considerations of her race, age, disabilities, or EEO activity in connection with incidents (2), (3), or (4). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
In circumstantial-evidence cases such as this, Complainant can establish motive by presenting evidence tending to show that the reasons articulated by the officials named in the complaint for their actions were pretexts, i.e., not the real reason but rather a cover for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).
In nonselection cases Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, or deviations from standard procedures without explanation or justification. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.12, 2015).
As to incidents (2) and (3), concerning the allegedly negative mid-year appraisal issued by S1a in April and June of 2012 and Complainant's subsequent reassignment to a Senior Attorney position in July 2012, S1a maintained that both actions resulted from Complainant's performance as a Group Supervisor between August 2011 and July 2012. S1a averred that throughout the performance period, Complainant had been struggling with the job of being a Group Supervisor. The appraisal document itself indicated that while Complainant showed strength in some areas, she needed to improve in others and had not done so as of the June 2012 follow-up to the mid-year appraisal issued in April. As to the reassignment, S1a maintained that, rather than terminate Complainant, she offered Complainant the opportunity to resign from the Group Supervisor position so that she would not have a black mark in her official personnel file. Complainant accepted S1a's offer. S1a's actions are documented by the appraisals from April and June 2012 and by the paperwork for Complainant's voluntary transfer to the position of Senior Attorney in July 2012. Complainant has not presented any affidavits, declarations, or sworn statements from witnesses other than herself, or documents that contradict S1a's explanations for the two appraisals and the reassignment, or which call S1a's veracity into question.
As to incident (4), which concerned Complainant's nonselection for the position of Group Supervisor in the Kansas City ODAR, the Commission has held that when hiring or promoting, agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). Agencies may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). Agencies may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). In this case, the documentation of the selection process for the Kansas City ODAR Group Supervisor position indicates that although Complainant was among the candidates referred for an interview, she was not recommended to the selecting official as one of the two best qualified candidates. The selectee had the highest score of all the applicants, and Complainant's interview with the HOD in Kansas City had not gone well. That the HOD found typographical errors on Complainant's application forms had also negatively impacted her prospects for being selected for the position. Complainant has not shown that her qualifications were plainly superior to those of the selectee nor has she presented documents or sworn statements tending to establish the existence of the other indicators of pretext enumerated above. Indeed, we find that she has not shown that any of the officials in Kansas City involved in the selection process were even aware of her race, age, disability or previous EEO activity. Again, Complainant has not submitted any evidence that challenges the veracity of these individuals or supports her contention that S1a or S2 had any involvement in the selection process.
To summarize, we determine that Complainant has not established that she was subjected to disparate treatment in connection with incidents (2), (3), and (4). We therefore agree with the Agency that Complainant has not met her burden of proof to establish an unlawful animus on the part of S1a or of the officials involved in the selection process for the Group Supervisor position at the ODAR in Kansas City.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding that Complainant was not discriminated against or harassed as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the 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
March 29, 2017
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 The Agency's final decision does not list the incidents in chronological order. We have done so here for ease of reference.
3 This incident was not addressed in the Agency's final decision.
4 S1b was Complainant's supervisor from July to November 2012. SIR: Ex. 7, p. 1, �� 1, 2.
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