Eulalia B.,1 Complainant,v.Scott Pruitt, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120172464 (E.E.O.C. Nov. 29, 2018)

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

Eulalia B.,1
Complainant,

v.

Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0120172464

Agency No. 20160027HQ

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 30, 2017,
final decision concerning an 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as an Information Technology Specialist, 2210,
GS 13 at the Agency’s Office of Chemical Safety and Pollution Prevention in Washington, D.C.

On February 24, 2016, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected her to discrimination and harassment based on sex, religion (atheist), age
(YOB: 1959), and/or in reprisal for prior protected EEO activity when:

1. on October 25, 2015, Complainant’s supervisor (“S1”), “trapped” Complainant in
a closed-door “general” meeting and subjected her to “discriminatory, unfair

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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bullying treatment” and “intimidation” instead of performing the previously
scheduled Performance Appraisal Review System (PARS) discussion.2

2. On unspecified dates, including July 12, 2012, and March 7, 2013, S1 failed to
honor previously scheduled “general” meetings with Complainant.

3. On unspecified dates since 2012, S1 subjected Complainant to “religious events”
by (a) frequently mentioning his religious congregation and sharing “religious
details” of his fishing trips during Complainant’s one-on-one “general” meetings
with him; and (b) maintaining a shared work calendar with numerous religious
events identified on various dates.

4. On unspecified dates from 2012 to 2015, the Branch Chief (“BC1”) laughingly
called Complainant by the name of another employee in front of others.

5. On unspecified dates from 2012 to 2015, S1 and BC1 obstructed Complainant’s
ability to work by: (a) withholding information needed for her duties; (b) revoking
her rights to access an intranet server; and (c) delaying responses and/or not
providing responses to Complainant’s complaints about the BC1’s behavior
toward Complainant.

6. On August 1, 2013, the Associate Branch Chief and Acting Branch Chief
(“BC2”), called Complainant a “demeaning, insulting, belittling” name during a
meeting conducted by S1, who condoned the behavior.

7. In November and December 2014, BC2 subjected Complainant to a “performance
rating battle,” trying to withhold an “Outstanding” rating.

8. On an unspecified date, and in September and December 2015, S1 instructed
Complainant to make “extra efforts to get along with” and provide work
assistance to three (3) male employees who were Complainant’s grade or higher,
yet refused to respond to Complainant’s repeated requests for work assistance.

9. From August 2013, to December 2015, S1 increasingly assigned Complainant
administrative duties instead of professional duties, which limited Complainant’s
grade promotion potential.

10. In December 2015, S1 promoted a male colleague, whose work she reviewed
and/or who Complainant mentored, to a GS-14.

2 Complainant states in her affidavit that October 27, 2015, is the correct date for this claim.
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After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant
requested an Agency final decision.

On June 30, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b).

The Agency dismissed claims 2, 7, and 10 on procedural grounds.3

The Agency found no evidence of discrimination for the discreate acts included in claims 1, 5, 8,
and 9.

The Agency found no evidence of discriminatory harassment for claims 1 through 10.

The instant appeal followed. On appeal, Complainant argues that that the Agency mishandled
her documentation and submits an extensive list of alleged misstatements Complainant found in
her affidavit, as well as misstatements Complainant found in management affidavits.
Complainant further argues that the Agency final decision also includes “errors and
misstatements of information.” Complainant submits several documents in support of her
appeal.

ANALYSIS AND FINDINGS

Disparate Treatment: Claims 1, 5, 8, and 9

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.

3 On appeal, Complainant does not expressly challenge the Agency’s dismissal of these claims
for untimely EEO counselor contact. Therefore, we will not address these procedural grounds
further in our decision.
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Where the agency has articulated a legitimate, nondiscriminatory 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions.
Complainant’s supervisor (“S1”) (male, Jehovah’s Witness, YOB: 1976) stated, regarding claim
1, that he conducted a closed-door general meeting, not a PARS meeting, with Complainant on
October 27, 2015. S1 stated that he closed the door for all general meetings for privacy reasons
given the close proximity of cubicles near his office. S1 further explained that he discussed
during the meeting, ways in which Complainant “could be more constructive,” and he also asked
Complainant to contact an information technology support individual regarding a webpage issue.
S1 stated that he was “firm” with Complainant during the meeting because he felt that
Complainant did not explain why she would not contact the information technology support
individual as requested. S1 further stated that he escorted Complainant to the nurse when
Complainant indicated to S1 for the first time that she was having medical concerns.

Regarding claim 5, S1 stated that he did not obstruct Complainant’s ability to work, and he did
not have the authority to revoke Complainant’s internet access. S1 further stated that he tried to
getting Complainant access and rights to publish website content directly, but he did not have the
authority to do so. S1 explained that Complainant had to send content to the Web Team for
direct uploads. S1 also stated that Complainant informed him that the Branch Chief of
Computer/Telecommunications (“BC1”) (male, Catholic, YOB: 1960) called Complainant by
someone else’s name. S1 explained that he did not consult BC1 about this issue and determined
that BC1 may have been confused given that BC1 was not Complainant’s supervisor.

BC1 stated that he requested revocation of Complainant’s website privileges because he
suspected that Complainant had been modifying re-direct codes or deleting files. BC1 further
stated that he sent Complainant an email on February 9, 2015 in response to Complainant’s
inquiry as to why her website privileges were revoked. BC1 explained that Complainant’s
website privileges were restored on February 12, 2015. BC1 further explained that he did not
withhold information from Complainant; rather, BC1 instructed Complainant to work with the
Web Team for further assistance.

The record includes a copy of the February 9, 2015 email addressed to Complainant and
submitted by BC1. In the email BC1 stated that he was “concerned that there are files being
deleted from the SSMS server OPP00001 without our knowledge.”

Regarding claim 8, S1 explained that Complainant and the three employees were “tackling
similar challenges,” and S1 was “encouraging” them to “bounce ideas off each other.” S1
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further explained that he asked Complainant to “watch her tone in her messages” and to be
“more cordial.” S1 stated that he instructed another employee to do the same. S1 also noted that
Complainant and the three employees had worked together before, but there had been “a lot of
head-butting” among them.

S1 explained that he requested that Complainant work with the three employees to accomplish
different tasks. S1 requested that Complainant work with one employee to “bounce off” ideas,
another to update training documents, and the third employee to post updated models to the
webpage. S1 explained that assisting with website postings was part of Complainant’s work
duties.

S1 further explained that Complainant did not specifically ask for assistance to complete
assignments, but complained that she wanted another division to handle work related to the
Agency’s website. S1 further stated that he “would not push off the work to another division,”
and informed Complainant that this work was her division’s responsibility.

Regarding claim 9, S1 stated that he assigned Complainant duties provided in Complainant’s job
description, and everyone has administrative duties included in his/her job description. S1
explained that “[a]dministrative duties do not limit anyone’s promotion potential.”

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on her sex, age,
and reprisal for prior protected EEO activity.

Hostile Work Environment - Claims 1, 5, 8, and 9

To establish a claim of discriminatory 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 her protected basis – in this case, her sex,
age, and reprisal for prior protected EEO activity. Only if Complainant establishes both of those
elements – hostility and motive – will the question of Agency liability present itself. Here, as
discussed below, Complainant simply has provided inadequate evidence to support her claim that
her treatment was the result of her sex, age, or reprisal for prior protected EEO activity.
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As discussed above, we found that Complainant did not establish, with respect to claims 1, 5, 8,
and 9, a case of discrimination on any of her alleged bases. Further, we conclude that a case of
harassment is precluded for these claims based on our finding that Complainant failed to
establish that any of the actions taken by the agency were motivated by her protected bases. See
Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Hostile Work Environment – Claims 2, 3, 4, 6, 7, and 10

As already noted, to establish a claim of harassment, Complainant must show that: (1) she is a
member of the 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. Humphrey v. U.S. Postal Service,
EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 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, 510 U.S. at 21. 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 Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires
careful consideration of the social context in which particular behavior occurs and is experienced
by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-
discrimination laws are not a “general civility code.” Id.

We find that remaining claims 2, 3, 4, 6, 7, and 10, also fail to support a finding that the Agency
subjected Complainant to discriminatory harassment.

Regarding claim 2, S1 explained that he conducted general meetings for 20 employees and he
did his best to make all the meetings. S1 acknowledged that it is “hard [for him] to keep track”
of the general meetings, but employees could reschedule cancelled meetings. S1 stated that he
was not aware of “anyone ever disagreeing with the reason [he] had to cancel [a meeting].” S1
further stated that he “must have missed at least one general meeting with everyone in [his]
branch.”

Regarding claim 3, S1 explained that he never made anyone attend a religious event. S1 further
explained that he and Complainant both enjoy fishing and would talk about their fishing trips
together. S1 stated that he only mentioned that one of his fishing friends attends his church and
that was the “extent of refereeing anything religious with” Complainant.

With respect to the shared Microsoft Outlook work calendar, S1 stated that his calendar is open
and viewable to 700 employees spanning over 9 divisions. S1 further stated that he elected to
use the Microsoft Outlook option which lists federal holidays and religious holidays on his
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calendar so that individuals could be “sensitive” when scheduling meetings and deadlines around
other’s religious holidays.

Regarding claim 4, BC1 acknowledged that he mistakenly called Complainant by another
employee’s name – “Geri.” BC1 explained that he was not Complainant’s supervisor, he rarely
saw Complainant, and he accidently called Complainant “Geri” because Complainant and “Geri”
have “similar physical traits.” BC1 further explained that he apologized after he made the
mistake. BC1 stated that he did not laugh when he called Complainant by the other name.
Rather, BC1 stated that he laughed after he realized his mistake – a common reaction BC1 has
“after recognizing [his] absent-mindedness” when calling other employees by an incorrect name.

Regarding claim 6, Complainant, in her affidavit provided during the investigation, stated she
was too “traumatized” to remember the offensive name she was called. S1 stated that he did not
remember the Associate Branch Chief (“BC2”) (male, Catho-Buddhist/Spiritualist, YOB: 1960)
calling Complainant an insulting name during a meeting. However, S1 explained that after
Complainant informed him of this incident, S1 spoke with BC2 and informed BC2 that
Complainant was insulted by his statement. S1 further explained that Complainant informed him
that BC2 apologized to Complainant, and S1 believed the issue to have been resolved.

BC2 stated that he never called Complainant a name during the meeting. BC2 explained that he
was talking about an IT issue and jokingly stated “these issues are going to make me “cuss” and
“oh hell no” during the meeting. BC2 further explained that these statements were directed to
“the entire branch and people in the room laughed.” BC2 stated that he spoke to Complainant
after S1 informed him of Complainant’s complaint; BC2 informed Complainant that the joke
was not directed at her personally, and BC2 apologized.

Regarding claim 7, BC2 explained that he had initially recommended that Complainant receive
an Exceed Expectation performance rating because Complainant had refused to accept two
assignments during the evaluation period. BC2 stated that he changed Complainant’s rating to
Outstanding for fiscal year 2014 after Complainant provided reasons for refusing the two
assignments. BC2 further stated that there was no “battle” involved given that he changed
Complainant’s rating the day after he had his initial conversation with Complainant and
Complainant accepted the Outstanding rating.

Regarding claim 10, S1 explained that Human Resources screened all applicants who applied for
the position vacancy. S1 stated that Complainant’s name was not provided on the certification
list and Complainant’s colleague was promoted in 2013.

We find that considering these claims, even if true, Complainant has not shown evidence that
considerations of sex, age, religion, or retaliatory animus motivated management’s actions
toward Complainant. We further find that the incidents Complainant alleges were not
sufficiently severe or pervasive as to constitute hostile work environment/harassment under
Commission regulation. The incidents involved are of a type that typically arise out of
workplace conflicts or communications. However, EEO laws are not a civility code. Rather,
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they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including
Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the
Agency discriminated against her as alleged.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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

November 29, 2018
Date