0120160522
03-05-2018
Hedy B.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hedy B.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.
Appeal No. 0120160522
Agency No. HSUSSS026572015
DECISION
On December 3, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 30, 2015 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Specialist (Pre-Complaint Program Manager), GS-14, in the Office of Equal Employment Opportunity and Diversity (OEEOD) at the Agency Headquarters in Washington, DC. On January 13, 2015, Complainant initiated EEO Contact alleging that the Agency subjected her to hostile work environment harassment based on reprisal for prior protected EEO activity (testimony related to her role as a collateral EEO Counselor2). On February 23, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment based on reprisal when:
1. on June 3, 2014, the OEEOD Director (S1) issued Complainant a "Memorandum of Concern,"
2. on August 4, 2014, S1 rated Complainant "Acceptable" for her fiscal year (FY) 2014 final appraisal although she did not identify any areas of concern in Complainant's mid-year performance review,
3. on August 22, 2014, S1 issued Complainant a "progress review" memorandum and threatened to place Complainant on a performance improvement plan (PIP) if her performance did not improve over the next three months,
4. on December 23, 2014, S1 issued Complainant a follow-up "progress review" memorandum and threatened to place Complainant on a PIP if she remained in EEO, and
5. in 2014 and 2015, S1 instructed Complainant to inform her colleagues whenever she uses annual leave, belittled Complainant in the presence of others, imposed an unrealistic timeframe for processing informal complaints, admonished her for not having their weekly complaints meeting, duplicated tasks that Complainant had already completed, accused Complainant of lying and providing inaccurate information, told Complainant that she had no rights as an EEO Counselor, reassigned a complaint that Complainant had assigned previously to a collateral duty counselor, and became upset, tossed papers in the air, and walked out of her office during a meeting with Complainant and other staff. 3
Investigation
Complainant
Complainant stated that, on May 9, 2014, she provided testimony regarding an informal EEO complaint for which she was the EEO Counselor and some of her testimony may have impacted the Agency's EEO program negatively. Complainant alleged that, following her testimony, S1 began to "micromanage" her by scrutinizing her work more and holding her to higher performance standards. Complainant stated that S1 belittled her and was condescending in the presence of others, which was humiliating. To support her claims, Complainant stated that S1 gave her a monetary performance award in March 2014 and appraised her as "Exceeded Expectations" on her prior two performance appraisals.
Agency Response
The OEEOD Director, S1, stated that she did not create a hostile work environment for or retaliate against Complainant. S1 stated that she is not aware of Complainant filing an EEO complaint previously, but Complainant did tell her that she was named in an EEO complaint prior to working in OEEOD. Further, S1 stated that the Agency's Office of Chief Counsel (OCC) informed her that Complainant was asked to provide a deposition during discovery for an EEO-based civil action in a United States District Court. OCC stated that Complainant was asked to provide a deposition based on a voicemail she left for the plaintiff of the civil action when he was in the EEO pre-complaint process. S1 stated that she initially denied OCC's request because a Counselor would not typically participate in such a proceeding. S1 stated, however, OCC informed her that Complainant had to participate because there was a recording of the voicemail from Complainant.4
S1 stated that she informed Complainant that she acted beyond the scope of her duties and responsibilities as an EEO Counselor when she drew conclusions on the merits of a case. S1 explained that Complainant left a voice mail message for a pre-complainant stating, "I was not able to discover any information that supports the claim of discrimination." S1 stated that Complainant's actions called into question her role as a Counselor and that is why a deposition was necessary. S1 stated that Complainant accused her of stepping on her rights when she read the deposition that Complainant provided. S1 stated that no other staff person has had a similar requirement to provide an EEO deposition.
S1 stated that Complainant was the Pre-Complaints Manager and her duties included overseeing the work of the collateral duty Counselors, ensuring informal complaints were counseled timely, conducting final interviews timely, and issuing Notice of Right to File documents within regulatory timeframes. In addition, S1 stated Complainant was the OEEOD Contract Representative. S1 stated that she expressed concerns about Complainant's performance prior to May 9, 2014. S1 stated that she often uses "soft tools" to draw an employee's attention to areas of concern before using "official tools." S1 stated, in this instance, the Memorandum of Concern (rather than a Memorandum of Record) was the "soft tool" she used.
S1 stated that Complainant shared personal family issues with her and she thought Complainant's personal challenges were effecting her performance. S1 stated that she thought Complainant's decline in performance was temporary, but when it continued to surface and verbal discussions were ineffective she began to document her concerns, which resulted in the "Acceptable" FY 2014 rating. S1 stated that she expressed concerns to Complainant about identifying the issue accurately in the intake process, issuing the Notice of Rights and Responsibilities to the aggrieved quickly, assigning EEO Counselors to pre-complaints efficiently, identifying Agency witnesses effectively and efficiently and notifying them in a timely manner, monitoring counseling activities and providing guidance to counselors, overseeing the drafting of counselor reports and the final interview process, improving the average number of days to process a pre-complaint, paying invoices for contract services promptly, coordinating with coworkers so that tasks are covered when Complainant is absent, and preparing and issuing appointment and reappointment letters for Counselors timely.
S1 stated that Complainant was aware that her performance declined as reflected in her self-appraisal for FY 2014. S1 stated Complainant noted areas of improvement needed.5 S1 stated, during Complainant's mid-year review, she was not "too concerned" about Complainant's declining performance because she thought the issues were temporary. S1 stated that she wanted Complainant's mid-year review to reflect faith in her commitment to improve rather than to highlight her performance deficiencies. S1 stated that a rating is not given for the mid-year review but a discussion of progress is given. S1 stated that she and Complainant had discussed performance challenges often.
S1 stated that the progress review memorandum is a preliminary step to encourage an employee to improve their performance before they receive an "unacceptable" rating or are placed on a PIP. S1 stated that she met with Complainant to discuss the progress review and Complainant seemed unreceptive to her constructive criticism. She stated that Complainant expressed an interest in reassignment to another office and she tried to help her efforts. S1 stated that she did not place Complainant on a PIP. S1 stated that she issued Complainant a follow-up progress review to let her know that she progressed in some areas but still needed improvement in others. S1 stated that Complainant asked her to hold off 30 days before taking any further action after the follow-up progress review and she agreed.
S1 stated that she did not belittle Complainant and did not impose unrealistic time frames for pre-complaint processing. S1 stated that she asked Complainant to inform coworkers when she would be out of the office so that tasks are covered in her absence. She also stated that she asked Complainant to schedule weekly meetings with the two of them and the Formal Complaints Manager to keep S1 abreast of EEO process activity.
S1 stated that, the latter part of 2014, Complainant complained often about her responsibilities and stated that she no longer wanted to work in EEO. Further, S1 stated that Complainant was resistant to her guidance. S1 stated, on December 8, 2014 during a weekly complaints meeting, Complainant got upset so S1 left the room to give Complainant an opportunity to cool off. S1 stated that Complainant told her again she no longer had interest in EEO work and was "burnt out." S1 stated that she learned from a responsible management official that Complainant provided her inaccurate information on the status of a complaint and she asked to meet with Complainant to discuss. S1 stated that, ultimately, she and Complainant had a pleasant professional relationship and she helped her find a GS-14 reassignment within the Agency, effective February 8, 2015.
Other Witness
The Complaints Manager, C1, stated that she was not aware of S1 belittling Complainant. C1 also stated that she was held to the same timeframes as Complainant when she handled informal complaint processing before Complainant worked in OEEOD. C1 stated that Complainant became upset in a meeting, stating she could not work there anymore, and S1 stood up and left the room. C1 stated, as early as 2013, she started noticing discrepancies in counseling reports, which impacted the amount of time she had to complete the complaint investigation. C1 stated that she and Complainant used to have a good working relationship and had worked together as a team.
Investigative Record
The record contains emails, dated between January 2013 and January 27, 2015, wherein S1 and Complainant discuss work-related concerns. In one email, dated November 8, 2013, Complainant stated, "My heart has not been in my job since I found that my Dad has cancer. I promise I will get myself together and work to the level of high performance that I know I can." In an email to Complainant and C1, dated January 7, 2013, S1 stated that the three of them need to meet weekly so that they can keep her abreast of weekly complaint status and that she should not have to be the one who constantly requests the meetings. In response, in an email dated the same day, Complainant proposed "each Wednesday at 11 am" for meetings. S1 provided documentation to show that she has practiced progressive discipline for other EEO staff members.
Post-Investigation
Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or an immediate final agency decision. In accordance with Complainant's request, 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.
In its decision, the Agency found that claim (4) herein is a timely, discrete act that can be analyzed under disparate treatment. The Agency found that Complainant failed to show that discriminatory animus motivated the Agency to issue a follow-up progress review. The Agency found claims (1) through (3) herein were untimely discrete acts so they would be analyzed as background evidence under hostile work environment with the incidents alleged in (4) and (5). As to harassment, the Agency also found that Complainant failed to prove that its actions were based on her prior EEO activity. The instant appeal from Complainant 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").
Procedural
A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete acts of discrimination, a hostile work environment claim is based upon the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. Furthermore, a hostile work environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice even if some component acts of hostile work environment fall outside the statutory time-period so long as an act contributing to the claim falls within the filing period. Id. at 117. However, complainant cannot recover for the specific discrete act if it is not timely raised. Id. The Commission has stated that "[b]ecause the incidents that make up a hostile work environment claim 'collectively constitute one unlawful employment practice,' the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-IV.C (revised July 21, 2005) (citing Morgan, supra).
A discrete act that occurred before the relevant time limitation period is untimely even if it is related to other actions that are timely. Id. But the untimely discrete acts can be used as background evidence in support of timely actions. Id.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Here, Complainant contacted an EEO Counselor on January 13, 2015, which makes only the incidents alleged in claims (4) and (5) timely.
Because the incidents that make up Complainant's hostile work environment claim "collectively constitute one 'unlawful employment practice," the entire hostile work environment claim is actionable because at least one incident that is part of the claim occurred within 45 days of EEO counselor contact. We will analyze Complainant's complaint as one of harassment primarily and disparate treatment as to claim (4) only. Claims (1) through (3) are background evidence.
Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). 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 at 6 (Mar. 8, 1994).
We find that Complainant has produced no evidence that the Agency's actions were based on discriminatory animus. Specifically, S1 stated that Complainant, as an EEO Counselor, improperly conveyed her opinion on the merits of a case to the aggrieved employee and left a recording of her opinion, which required Complainant to provide a deposition in the civil action of the aggrieved. S1 stated that she informed Complainant that she overstepped her role as Counselor. However, S1 also stated that she did not harass Complainant or retaliate against her. S1 stated that Complainant confided to her that she had personal family issues and she observed Complainant's performance decline assumedly as a result. S1 stated that verbal discussions did not improve Complainant's performance so she used "soft tools" and progressive discipline to convey the need for improvement. S1 stated that she rated Complainant as "Acceptable" in FY 2014 but Complainant was cognizant of her need for improvement, as evidenced by her comments on the FY 2014 performance review. The record supports S1's contentions that she and Complainant discussed performance issues prior to Complainant's May 9, 2014 deposition. S1 stated that Complainant was no longer happy working in EEO so she assisted her in obtaining an alternative GS-14 position within the agency.
Disparate Treatment
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 case 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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. 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. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination as to (4), the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. As articulated above, S1 discussed concerns with Complainant's declining performance and a need to document issues and follow-up with review. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected class.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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.
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 5, 2018
__________________
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 record contains an excerpt of a deposition, dated May 9, 2014, for a civil action in the United States District Court for the District of Columbia. The excerpt indicates that Complainant left a voicemail for an aggrieved employee regarding processing his pre-complaint and her determination that the information collected did not support a claim of discrimination.
3 We identified the claims different from the Agency's Statement of Accepted Claims. We consolidated ten incidents alleged individually into a list of harassing incidents under claim (5).
4 S1 stated that Complainant told her that she would not leave pre-complaint final interview information on a voicemail so there was no way there was a recording of her doing so. In her investigation rebuttal statement, Complainant acknowledged that she told S1 there was no recording of her leaving a final interview voicemail because she did not recall and it was not her standard procedure of doing so. Complainant stated that she later acknowledged it was her voice on the recording.
5 The record contains a Performance Review, for July 1, 2013 through June 30, 2014, which contains "Employee's Comments" from Complainant including, in pertinent part:
By working closely with Procurement and Financial Management officials, I will ensure that contracts are renewed and invoices are paid promptly in the future. . . .
I readily accept all responsibilities of my position as EEO Specialist and strive everyday to perform at my highest potential. When mistakes are made, or performance shortcomings are identified, I listen to the guidance given and put processes in place to ensure that the same mistakes or shortcomings don't occur again. I believe that during this rating period, I have improved my ability to analyze issues and identify and recommend correct courses of action. . . .
I promise to learn from my mistakes and not repeat them and continue to grow professionally and positively represent the office.
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