Glynda S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionOct 26, 20180120170939 (E.E.O.C. Oct. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glynda S.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Headquarters), Agency. Appeal No. 0120170939 Agency No. HS-HQ-25500-2016 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated December 28, 2016, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511- 09, subject to one year probationary period at the Agency’s Office of Inspector General (OIG), Office of Audits, Miramar, Florida. On April 13, 2016, Complainant filed her complaint alleging discrimination based on race (African American) when she was subjected to a hostile work environment in that: (1) On or about June 2015, her supervisor (S1), the Audit Manager, notified her that as a probationary employee, she “could be fired for any reason.” 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. 0120170939 2 (2) On undisclosed dates between August 2015, and September 2015, S1: (a) Repeatedly told her that she needed to smile more during meetings. (b) Stated, in front of two of her coworkers that she “needed to smile more,” and that she “did not play well with others” because she had been home with her children for five years. (c) Repeatedly interrupted her during the September Midpoint Meeting. (d) Denied her request to attend an October 2015 training seminar. (3) On September 30, 2015, S1 made corrections to her work and insisted that she log into the audit system to review the corrections before she could depart for lunch with her coworkers. S1 later informed her that S1 felt disrespected and that S1 had shared her actions with S1’s husband who stated that if “he were in [S1’s] shoes, he would have killed [Complainant].” (4) On November 16, 2015, she learned that within the narrative portion of her October 28, 2015 performance appraisal, S1 had criticized her professional judgment. (5) On December 1, 2015, S1 required her to correct errors discovered in her time cards before S1 would approve them. (6) On December 7, 2015, management terminated her during her probationary period from her position as an Auditor in the OIG, Office of Audits. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). 0120170939 3 After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. Complainant was hired as a GS-9, Auditor at the Agency’s OIG office on March 9, 2015, subject to a one year probationary period. Regarding claim (1), even assuming S1 did make the comment, there is no evidence it was motivated by Complainant’s race. Some employees indicated that when they were a probationary employee they too were informed of the same. Regarding claim (2), Complainant acknowledged that she perceived S1’s comments about the need to smile was to make those around her more comfortable. S1 indicated that she told her team, including Complainant, that smiling would help to put the interviewee at ease. S1 also indicated that Complainant was told she did not play well with others because she refused to work with the OIG Administrative Office about her obtaining office supplies and maybe because she had been away from a formal work setting. S1 indicated that Complainant nor anyone else from the team told her they felt interrupted during the midpoint meeting. The team and senior management held the meeting via conference call to discuss the status of the project and everybody was encouraged to participate. Complainant indicated that when she asked S1 to take place of an Auditor from another team, who was previously approved to attend a training seminar but was unable to attend for a personal reason, S1 denied the request. S1 stated that her team had too much audit project work which took priority over the training. Furthermore, Complainant had already taken sufficient training during the fiscal year to meet her training requirement. Complainant did not object to S1’s decision at that time. Complainant acknowledged that none of the Auditors in her team were approved to attend the training at issue. Regarding claim (3), S1 denied the incident as alleged. S1 asked to meet with Complainant before she went to lunch to briefly discuss pending assignments with the ongoing audit project. During the discussion, Complainant told S1 that she had not begun working on the notes and became defensive and walked out in the middle of their conversation. Next day, S1 told Complainant that S1 felt disrespected by her actions, described above. Complainant acknowledged that she then apologized to S1 for her actions. S1 denied telling Complainant about S1’s husband’s comment as alleged. Regarding claim (4), the record indicates that for FY 2015 annual appraisal, Complainant received the rating of Achieved Expectations for each of her position objectives, i.e., audit planning, audit execution, and communication. There were two performance ratings, i.e., one was Achieved Expectations and the other higher one was Achieve Excellence. She received the overall rating of Achieved Expectation. Under the communication objective, S1 noted that “[Complainant] can be very literal, and may sometimes not use her own professional judgment in applying instructions or directions.” For example, S1 indicated that on one occasion Complainant misunderstood the audit manager’s instruction and wrote the entire meeting write-ups in 0120170939 4 generalities and not in details as she was required to do so. Complainant does not dispute the foregoing incident. Regarding claim (5), S1, noticing Complainant charged all her 40 hours for working on the project in her timesheets, asked her to revise her timesheets to appropriately include time spent on administrative activities. S1 stated that Complainant was previously instructed on the same issue. Regarding claim (6), on December 7, 2015, the Chief of Audit Operations terminated Complainant during her probationary period from her position due to her behavior and misconduct. Therein, the Chief indicated Complainant’s misconduct when: on September 30, 2015, she left an impromptu meeting before it ended as described in claim (3); on October 22, 2015, in response to an identified Program Analyst’s email which was sent to several members of a team, including her, concerning the Government Printing Office’s printing of security credentials, she sent an unprofessional email response to everyone on the email chain; and on November 16, 2015, she sent an email to S1 concerning her Individual Development Plan in an inappropriate tone with sarcasm towards S1. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Taking into consideration all the events together, we do not find Complainant was subjected to harassment since she failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. It appears that Complainant did not work well with S1 and S1’s hands-on managerial style. Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120170939 5 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. 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. 0120170939 6 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 26, 2018 Date Copy with citationCopy as parenthetical citation