Doria D.,1 Complainant,v.Thomas E. Perez, Secretary, Department of Labor (Employment and Training Administration), Agency.

Equal Employment Opportunity Commission

Oct 21, 2016

0120140871 (E.E.O.C. Oct. 21, 2016)

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

Doria D.,1
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor
(Employment and Training Administration),
Agency.

Appeal No. 0120140871
Hearing No. 410-2011-00248X
Agency No. 1004097

DECISION

Complainant filed an appeal from the Agency’s December 12, 2013, final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-15 Program
Manager for the Department's Employment and Training Administration (ETA), Office of
Foreign Labor Certification (OFLC), Atlanta National Processing Center (ANPC) located in
Atlanta, Georgia.

On June 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Black), national origin (Haitian), and in reprisal for prior
protected EEO activity when: (1) in March 2010, her supervisor (S2) discussed/referenced her
knowledge of her Haitian descent (or lack thereof) during the Haitian earthquake and
subsequently solicited complaints and performance/conduct reviews against her from staff
members in the ANPC; (2) on March 31, 2010, during her mid-year performance review, S2
remarked that she was part of a clique, that she was a racist, and that she had a “hit list” of

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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those individuals that she did not like at work; (3) throughout the month of April 2010, S2
continued to make unwelcome remarks regarding her performance and conduct to one of
Complainant’s fellow program managers; (4) on or around April 13, 2010, S2 and a fellow
program manager excluded her from a meeting where final decisions were made concerning
modifying the movement of cases within the units delegated under Complainant's authority; (5)
on April 26, 2010, during a meeting with management officials and a fellow program manager,
she was verbally reprimanded by management for monitoring the time of late arrivals of
employees in the ANPC while the other program manager, who had reportedly also monitored
the arrivals, was not reprimanded; (6) on or around April 28, 2010, S2 revealed false
personnel information to an EEO investigator in hope of proving that Complainant was
creating a hostile work environment; (7) on July 28, 2010, S2 erroneously referenced a
Quarterly Assessment Report with Complainant’s new supervisor (S1) allegedly resulting in
supervisory interference among Complainant and staff and Complainant having an emotional
breakdown; (8) on July 29, 2010, Agency officials reportedly held an intimidating meeting
with Complainant concerning allegations of a hostile work environment in her (Complainant’s)
office and did not allow her to address the allegations; (9) on August 11, 2010, a contract
employee reportedly solicited false complaints from other contractors encouraging them to
write their Congressman regarding false allegations about Complainant; (10) on August 13,
2010, S2 required that a division binder be created for the units under Complainant's
leadership but did not require the same for the units under the leadership of Complainant's
counterpart; (11) on August 16, 2010, S2 allegedly threatened to place written warnings in the
personnel files of employees in Complainant's unit for mistakes in processing cases (reportedly
disregarding the Agency's progressive discipline policies); (12) on August 16, 2010, a contract
employee threatened to write a letter to her Congressman regarding false allegations of OFLC
hiring practices and blame Complainant; and (13) on or around September 17, 2010, the
Administrator of OFLC issued Complainant an official warning.

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). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s November 21, 2011, motion for a
decision without a hearing and issued a decision without a hearing on August 9, 2013. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

FACTUAL BACKGROUND

In May 2011, Complainant became the Center Director of the ANPC. Complainant's
supervisor from December 2009 to May 2010 was S2, a National Program Manager in the
Permanent Labor Certification Program (PERM) Operations in Washington, D.C. Starting in
May 2010, Complainant's first-line supervisor (S1) was an Operations Manager located in the
ANPC. Complainant alleges she was subject to disparate treatment and a hostile work
environment due to a series of Agency actions that took place between March 2010 and
September 2010.
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In March 2010, a number of employees in the ANPC contacted S2 to raise allegations of
discriminatory conduct and a hostile work environment by, among other things, Complainant.
During a visit to the ANPC later that month, S2 was approached by other workers to discuss
similar complaints. To address these complaints and assess the need for further action, S2
discussed these allegations with some employees in the ANPC, including those who had
discussed their complaints against Complainant with S2. Based on the information S2
received, she raised these allegations with Complainant on March 25, 2010 and during
Complainant's mid-year performance evaluation on March 31, 2010 in the context of
Complainant's performance plan.

Complainant alleges it was improper for S2 to request information pursuant to these complaints
and to raise the allegations she heard during Complainant's mid-year performance review. In
April 2010, S2 completed an affidavit in relation to an internal EEO investigation of the
ANPC, in which she reported allegations that were made to her. S2 also requested that the
investigator interview all ANPC employees. In addition, the EEO investigator asked
Complainant to provide information for that investigation. Complainant claims S2 provided
false information to the investigator to purposefully implicate Complainant in the center-wide
investigation.

In July 2010, the OFLC Administrator (A1), and the Administrator of ETA's Office of
Financial and Administrative Management (A2), met with Complainant to discuss allegations
that Complainant's conduct was perceived as hostile or harassing to staff in the ANPC. A1
asked Complainant to cease such conduct, but did not threaten or impose disciplinary action.
Complainant alleged she was not allowed to address the allegations, and that the meeting was
intimidating and amounted to wrongful harassment. Complainant admitted, however, that the
meeting was not related to her race, national origin, or prior EEO activity.

In September 2010, A1 issued Complainant an official warning to address the numerous
complaints of hostile work environment the Agency received regarding Complainant's
treatment of the employees she supervised. Complainant had the opportunity to respond to the
official warning, and did so in writing on October 4, 2010. Complainant alleges she was
issued the warning in retaliation for her prior EEO activity, but that the claim relates only to
S2, not A1. Complainant also explained this it was not discrimination on the basis of her race
or national origin.

Complainant challenges certain conversations S2 allegedly had with Complainant's peer (C1)
about Complainant in April 2010. Complainant does not know when the comments were
made, and did not ask S2 to corroborate whether the conversation took place. Rather,
Complainant assumes that S2 gave C1 information about her. As a result of this alleged
conversation, Complainant claims she was excluded from a meeting with department staff, in
which participants made a decision about how cases would enter and leave her unit of analyst
review and how cases were treated in appeals. The meeting took place in Washington, D.C. to
discuss, among others, language employers could use in their advertisements. During the
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course of the meeting, attendants called C1 to discuss this issue, as it largely related to C1's
area of responsibility. Complainant asserts without supporting evidence that C1 participated in
the decision-making. Complainant claimed that these actions (i.e., the conversations between
S2 and C1 and Complainant's exclusion from the meeting) are evidence of disparate treatment
based on her race because of prior discussions she had with S2.

Complainant claims that S2 engaged in disparate treatment when, on August 13, 2010, she
requested that Complainant's unit create a division binder, while not requiring the same for
C1's unit. Complainant admitted that the binder was very helpful to her unit, and that this
claim is only based on race. In addition, Complainant admitted that the following actions were
not based on any of the alleged protected bases: (1) the monitoring of the sign-in times; (2) the
alleged supervisory interference by S2 in connection with a Quarterly Assessment Report; (3) a
contract employee's threat to solicit other contractors to write their Congressional
representatives regarding Complainant; (4) the threat to place written warnings in the files of
employees in Complainant's unit; and (5) a second contract employee's threat to write a letter
to Congress regarding Complainant.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Prima Facie Case of Discrimination/Reprisal

We agree with the AJ in concluding that Complainant failed to present facts that give rise to an
inference of discrimination. First, several of Complainant's claims fail by her own admission.
With respect to the remaining claims, Complainant has only offered bare and uncorroborated
assertions that her race and national origin were a factor in the Agency actions.

We also agree with the AJ in concluding that Complainant failed to present sufficient evidence
in support of a finding of unlawful reprisal.2 The record is devoid of evidence to establish that
S2 or A1 were aware of Complainant’s EEO activity prior to engaging in the employment
actions at issue in Claims 1 and 13.

Agency Rationale and Pretext

We agree with the AJ that even if Complainant had met her burden to prove a prima facie
case, the Agency proffered legitimate, nondiscriminatory reasons for the challenged actions,

2 Complainant raises the basis of reprisal with respect to Claims 1 and 13.
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and Complainant failed to present evidence that the Agency's reasons are a pretext for
discrimination or retaliation. Specifically, Complainant failed to present evidence establishing
that S2's explanation of her handling of the internal complaints against Complainant are not
worthy of belief. S2 explained that she did not solicit complaints. Rather, she listened to
employees' voluntary complaints and reported those to the EEO investigator. Furthermore,
she explained that she discussed these complaints with Complainant during her performance
review because EEO is an element of Complainant’s managerial performance. S2 also denied
discussing Complainant with C1. She also denied including C1 in the meeting with ETLS.
Instead, C1 was called to clarify an issue within her area of work. Lastly, S2 could not recall
requesting the creation of a unit binder. Complainant offered no evidence to cast doubt on
these accounts.

In regard to the claims of retaliation, the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the Agency established that S2 spoke with employees in
the ANPC only after receiving complaints about Complainant. Moreover, the warning was
issued as a result of Complainant's misconduct and prior to the Agency official learning of
Complainant's EEO activity.

Hostile Work Environment Claim

To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. Specifically, Complainant
identified the alleged harassing actions the requirement that Complainant create a division binder,
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the investigation of internal EEO complaints, the issuance of a warning as a consequence of
employees' EEO complaints against Complainant, and ordinary office communications, such as
gossip and office meetings at which Complainant's duties are allegedly mentioned. Complainant
did not establish these actions to be severe or pervasive and failed to establish that some of the
alleged conduct even occurred (e.g., the unwelcome remarks to Complainant's co-worker, the
meeting with management officials, or the spread of false information about Complainant).
Complainant also failed to show that they occurred with regularity (e.g., the claim that S2 solicited
complaints against Complainant from staff members in the ANPC) or that the conduct was
improper (e.g., the inclusion of EEO matters in Complainant's performance review, the issuance
of a warning in relation to EEO complaints, or the directive to create an instructive binder). We
agree with the AJ that a reasonable person would not find that these events interfere with the work
environment. The actions challenged constitute, at most, ordinary workplace conflicts.
Accordingly, we agree that Complainant failed to establish that a reasonable person would find the
work environment to be hostile and abusive.

CONCLUSION

Accordingly, based on a thorough review of the record we AFFIRM the AJ’s summary
judgment decision in favor of the Agency.3

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

3 We note that Complainant failed to present any argument in support of her appeal.
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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

October 21, 2016
Date