0120160849
05-03-2016
Emiko S.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emiko S.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120160849
Agency No. DOI-FWS-13-0249
DECISION
On December 5, 2015, Complainant filed an appeal from the Agency's October 30, 2015, final decisions concerning her equal employment opportunity (EEO) complaint and her amendment to her formal 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Accountant at the Agency's Region 4 facility in Atlanta, Georgia.
On June 8, 2013, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity for participation in a subordinate's EEO complaint and the instant complaint. Complainant alleged the following events in support of her claim of harassment:
1. On April 2, 2013, the Chief requested a meeting to discuss Complainant's supervisory probationary period.
2. On March 28, 2013, she received a Letter of Reprimand from the Chief.
3. On March 1, 2013, she learned that a male co-worker was hired as a GS-13/10 for a position she applied for, but was only offered a GS-12, despite being more qualified than the male hired for the position.
4. On February 25, 2013, she was not selected to participate in the Budget Tracking Tool (BTT) training and subsequently, on June 25, 2013, she was not selected as the Supervisory Regional BTT point of contact, despite having oversight responsibility for the Region's budgetary tracking, analysis and reporting.
5. On May 24, 2013, she did not receive a Within Grade Increase to GS-13/3.
6. On June 7, 2013, her supervisor abused his authority by improperly making changes to a subordinate's position description (PD) that Complainant electronically signed in PD Express, thereby implicating Complainant in potential and/or the perception of wrongdoing.
7. On June 20, 2013, the Chief and the Assistant Regional Director continually intimidated and harassed her about signing a subordinate's position description Complainant believes violated a Settlement Agreement the Agency entered into with the subordinate.
8. On July 9, 2013, the Chief refused to render her a rating of record for FY 13 in an attempt to negatively impact her competitiveness within the organization.
9. On July 16 and 17, 2013, the Acting Assistant Regional Director of Budget and Administration notified Complainant that she would not be allowed to perform in an acting capacity as Chief of the Budget, Planning and Financial Services (BPFS) Division based on the directive of the Deputy Regional Director.
10. On August 11, 2013, she was not allowed to compete for the Chief, Budget and Administration General Service (GS-14) position.
11. On August 22, 2013, she was told she could not attend/participate in the Regional Headquarters' Market Survey/walk-through of the buildings for potential lease space despite Regional leases being a part of her duties.
12. On August 29, 2013, the Assistant Regional Director refused to grant her a one-on-one open door meeting.
13. On September 10, 2013, the acting Chief, Budget Planning and Financial Services reassigned Complainant's key duties to a White co-worker.
14. On November 29, 2013, she received a numerical rating of "4" (Superior), in Critical Element 1 of her FY 2013 Employee Performance Appraisal Plan and on December 12, 2013, the ARD B&A submitted the performance appraisal with the statement "Employee Refused to Sign" in the employee's signature block.
15. On December 24, 2013, the Assistant Regional Director for Budget and Administration (ARD B&A), Region 4, directed that Complainant's time and attendance card access in QuickTime be restricted and/or removed.
16. On December 11, 2013 and December 20, 2013, management failed to restrict or take actions to restrict Complainant's former supervisor, who is named as the RMO in Complainant's current complaint, from Complainant's office area.
17. On December 19, 2013, the ARD B&A directed Complainant's co-worker not to share the content of an e-mail or provide Complainant a copy of the e-mail that contained information regarding personnel actions for Complainant's subordinates.
18. On December 19, 2013, she received a threatening e-mail from the ARD B&A, which directed her to work issues through the "chain of command."
19. On December 18, 2013, a co-worker in a non-supervisory position was allowed to serve as acting Chief, Budget, Planning and Financial Services Division, a position that supervises Complainant.
20. On February 10, 2014, she discovered her former supervisor informed her coworker that he was going to remove Complainant's supervisory authority.
21. On February 6, 2014, the Regional Director and Assistant Regional Director failed or refused to ensure that Complainant was provided a copy of her signed affidavit that was submitted for a management inquiry.
22. As of February 19, 2014, the ARD B&A has not established critical elements and performance standards for her FY 2014 Employee Performance Appraisal Plan.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Subsequently, Complainant amended her formal complaint to include two additional events which she believed constituted harassment based on race and her prior EEO complaint. Specifically, Complainant alleged the following events:
23. On April 4, 2014, the Director of the U.S. Fish and Wildlife Service refused/failed to investigate allegations of a hostile and intimidating work environment and failed/refused to investigate management improprieties and abuse of authority; thereby leaving Complainant in a hostile and harassing environment after being informed via email; and
24. On May 20, 2014, she received a Letter of Reprimand
The Agency conducted a supplemental investigation regarding the additional claims of harassment. At the conclusion of the supplemental investigation, the Agency provided Complainant with a copy of the supplemental 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 requests, the Agency issued its final decisions pursuant to 29 C.F.R. � 1614.110(b). The decisions concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal on both final decisions followed.
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").
It is well-settled that harassment based on an individual's race, sex and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on sex, race and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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 harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant asserted that she was subjected to harassment based on her race, sex, and prior EEO activity. Complainant indicated that she informed management that she was called as a witness for a subordinate employee's EEO matter. After Complainant informed management, she believed management took steps to create a hostile work environment. In support of her assertion, Complainant listed a series of events. However she provided little evidence to show that that alleged incidents occurred because of her protected bases. We note that a Program Analyst stated in her affidavit that the Chief intentionally discriminated against African Americans and pushed Caucasians to the top of the budget and finance arena. A subordinate (Subordinate) also provided an affidavit asserting that Complainant was seen as a "problem," heard the Chief yell at Complainant, and saw him roll his eyes at Complainant. However, neither the Program Analyst nor the Subordinate provided any evidence to support their assertions. In contrast, the Coworker averred that Complainant had issues with taking directions from management and would confront them about issues. Therefore, we find that Complainant has not established that the alleged harassment occurred because of her protected bases and/or her prior EEO activity.
We now turn to the issue of whether Complainant showed that the alleged events, taken as a whole constituted a hostile work environment. We find that, based on our review of the events raised by Complainant in support of her claim of harassment, she did not establish that she was subjected to a hostile work environment. As noted above, in her complaint and amendment, Complainant asserted some 24 incidents which she asserted created a hostile work environment.
We note some of the events she perceived to be intimidating. For example, in claims (1) and (23), Complainant noted that she was sent an appointment to meet with the Supervisor but he failed to list anything in the subject line. She believed that she was going to be terminated at that meeting. She also claimed that she received a threatening email from management in claim (18) which reminded her that she needed to work "through the chain of command." She believed that such an email was to threaten and intimidate her. She was also denied a copy of an affidavit which was submitted as part of an internal Agency inquiry as noted in claim (21). In claim (22), she noted that the Agency had not provided her with performance plan for 2014.
As for the reprimand raised in claim (2), Complainant indicated that she did not engage in the alleged misconduct. She stated that she had called and left a message with a friend but the Agency indicated that she called a subordinate (Subordinate) after-hours.2 As for claim (3), Complainant indicated that she applied for and was offered the GS-12 position. Complainant refused the position because she could not maintain her GS-13 level. However, later she learned that a male coworker (Coworker) occupied the position at the GS-13 level. She believed that the Agency's action was illegal. In claim (4), Complainant asserted that she was denied BTT training and was then not selected for the Supervisory Regional BTT point of contact. In claim (5), Complainant believed that the Chief failed to timely provide her with a wage in grade increase. In claim (8), Complainant indicated that the Chief had accepted a new position outside of the Agency. As such, Complainant asked that the Chief provide her with a close out rating. Complainant indicated that the failure to provide a close out rating resulted in claim (14). She felt she should have been given a level 5 rating as opposed to her updated final rating of 4.8.
As for claim (6), Complainant asserted that she did not agree with the changes made to the Subordinate's PD and felt that she would be implicated in a wrongdoing. Complainant also indicated in claim (7) that he was harassed by the Chief and the Assistant Regional Director in meetings regarding the PD. She asserted that she was harassed into signing a PD which did not match the Subordinate's work. In claim (9), Complainant asserted that the Deputy Regional Director did allow employees to act for the Chief following his departure. She felt that this was done to deny her promotional opportunities and was not permitted to compete or the Chief position as indicated in claim (10).
In claims (11) and (12), she asserted that she was denied opportunities to be in meetings or walk through of possible lease space. She also asserted that the Acting Chief took away a function from her branch due to his misunderstanding the process as raised in claim (13). Also, in claim (19), Complainant asserted that the Acting Chief allowed a non-supervisor to step in for him when he was on leave. In claim (15), Complainant indicated that she used to have access to the time and attendance of the Coworker's branch but discovered that her access was restricted in December 2014. Subsequently, Complainant argued that she was denied information regarding personnel action by management in claim (17). She believed that since she had been rotating as acting Chief, she should be involved on the emails.
In claim (16), Complainant asserted that the Chief returned to the workplace in December 2013. She believed that the former Chief was permitted to violate security protocol and permitted access to the office. Complainant noted that the Chief went to the Subordinate and glared at her. Complainant only observed the Chief.
In response to Complainant's claims, management officials provided reasons for their actions. As for the email alleged in claim (1), the Chief wanted to know Complainant's availability to discuss work issues and the Regional Director noted that this meeting was required. However, the meeting never occurred. The meeting was also raised in claim (23). Management noted that the meeting was to provide guidance. As for the email raised in claim (18), management simply asked Complainant not to circumvent the chain of command because they learned that she went to the Regional Director regarding a meeting with another agency. As for the reprimand alleged in claims (2) and (24), the Chief noted that Complainant contacted the Subordinate very late at night and he wanted to deter Complainant from engaging in such activity again. As for claim (19), the Coworker noted the Acting Chief was on leave the day of the office holiday party and named the non-supervisory employee. Management had no concern for the acting assignment noting that it was an opportunity for the non-supervisory employee to develop. Management denied Complainant's claim that they refused to provide Complainant with her affidavit as asserted in claim (21). As to claim (22), the Agency officials noted that they had been working on the performance plans for not only Complainant but also for the Coworker and others.
As for claim (3), the Chief indicated that there were two positions open at the same time advertised at the GS-13 level and that the Coworker expressed interest in a different position than the one Complainant wanted. The difference in their pay, the Chief note was based on their pay prior to entering their respective positions. The Chief believed that Complainant and the Coworker were qualified and given the same opportunity for both positions. In response to claim (4), the Assistant Regional Director stated that meetings were held between her, Complainant, the Chief and the Coworker during which Complainant insisted that she could not provide support for the BTT and the function was placed in the Coworker's branch. As for claim (5), the Chief noted that he would have provided Complainant with the wage in grade increase but he did not receive an automatic notice that is usually generated by the Human Resources Office. As for claims (6) and (7), the Subordinate noted that she filed an EEO complaint regarding her PD which was resolved through a settlement agreement. The Subordinate did not believe that Chief trusted Complainant. The Chief stated that the PD involved Complainant as well as other officials from the Human Resources Office. Other management officials found no issue in the Chief's edits to the PD and the review process through Human Resources. As for claim (8), the Human Resources Office worked with management to provide Complainant with a performance plan with the Chief's departure. In claim (9), the Deputy Regional Director stated that he was new to the Regional Office and wanted to minimize unfair hiring practices. He believed it was more appropriate to place someone in the detail position who would not apply for the Chief position. Therefore, the detailed employee would not have an advantage over the applicants. Therefore, Complainant and the Coworker were not placed into the detail Chief position because they indicated that they would be applying for the position when it was posted. However, the Chief position was not posted but filled as an accretion of duties. Therefore, in response to claim (10), the Agency indicated that the duties were absorbed into the new position and there was no posting of the Chief position.
Complainant alleged in claim (11) that she was excluded from participating in a walk through regarding lease space. However, the record indicated that she was included when a miscommunication was cleared up. Therefore, Complainant was not excluded from the walk through as asserted. In response to claim (12), management indicated that they offered to meet with Complainant but with a third party which was the normal practice.
The Acting Chief believed that a different branch was to provide the report at issue in claim (13). In response to claim (14), management believed that Complainant's rating of "Superior" best matched Complainant's performance. Furthermore, the Agency noted that Complainant received a cash award in addition to a time off reward for her performance. As to Complainant's access to the Coworker's branch time and attendance records alleged in claim (15), the Assistant Regional Director asked the regional Timekeeper to establish new reporting chains so that the Coworker could have access as the Acting Division Chief. She was not aware that Complainant was provided with access to the other Branch. Further, when Complainant became the Acting Division Chief in January 2014, her access was changed. Regarding claim (17), the Assistant Regional Director noted that the information provided to the Coworker was marked sensitive because it involved personnel actions. She noted that Complainant was not yet the Acting Chief at the time and she did not need that information to fulfill her duties.
As to claim (16), the Assistant Regional Director denied ignoring Complainant's concerns about the Chief's return to the workplace and noted that the Subordinate followed up with the Deputy Regional Director. He noted that the Chief had been investigated in the past for harassment and he found no reason to restrict the Chief from returning to the office. The matter involving the Subordinate and the Chief was also forwarded to the Safety and Occupational Health Specialist. In claim (20), Complainant asserted that the Chief told the Coworker that he was going to remove Complainant's authority. However, the Chief never took any action and Complainant did not learn of the plan until months after the Chief had left.
Therefore, upon review of the record, we find that Complainant has not met her burden of establishing that the alleged events occurred because of her protected bases and/or prior EEO activity or that the alleged events created a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decisions finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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
May 3, 2016
__________________
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 We note that Complainant's friend and the subordinate had the same name albeit different spelling.
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