Isabel F.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionSep 29, 20202019000658 (E.E.O.C. Sep. 29, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabel F.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019000658 Hearing No. 570-2016-00755X Agency No. BOP201401062 DECISION On October 25, 2018, 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 24, 2018, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Supervisory Operating Accountant, GS-13, at the Agency’s Federal Bureau of Prisons, Central Office, Administration Division facility in Washington, D.C. On November 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (Caucasian), age (47), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 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. 2019000658 2 1. on September 6, 2014, Complainant was advised that she was not considered for the Acting Business Administrator position; 2. on August 5, 2014, Complainant was notified that Vacancy Announcement No. CO-2014-0232, which she was seeking was cancelled and re-announced under Vacancy Announcement No. Co-2014-0268. Additionally, it was re-classified with the 24 semester hours of accounting requirement removed; 3. on August 17, 2014, she was notified that she was not selected for a financial Manager (Business Administrator) position at Central Office (Vacancy Announcement No. CO-2014-0268); 4. on December 10, 2014, she was notified that she was not selected for a Supervisory Accountant (Chief Accounting Operations) position at Central Office (Vacancy Announcement No. CO-2015-0013); 5. on April 30, 2015, she became aware that her Performance Work Plan (PWP) was lowered; 6. on April 16, 2015, she became aware that she was not selected for a Program Analyst position at Central Office (Vacancy Announcement No. CO-2015-0119);2 With regard to Complainant’s harassment/reprisal claim, Complainant contends that she had been subjected to the following retaliation from her supervisors. a. From November 4, 2014 to December 15, 2014, Complainant had been subjected to retaliation from her supervisors in that they have sought to hamper her authority as supervisor by making false statements about her as well as encouraging subordinate employees of Complainant to circumvent the chain of command, to question her authority, to engage in insubordination, to make false reports and to otherwise undermine the authority of Complainant. The retaliation and harassment have also come in the form of email, verbal counseling sessions and memorandum, as more fully described below. b. On November 7, 2014, Complainant received an email from E1. E1, a co-worker,3 accused Complainant of engaging in derogatory, disrespectful and unprofessional communication towards her during an early morning conversation on the same day. 2 The Agency held this claim in abeyance because of the pendency of a class action raising related claims. See, Dennis Turner v. Michael B. Mukasey, Attorney General of the United States, Department of Justice, (Federal Bureau of Prisons), EEOC No. 541-2008-00255X, Agency File Nos. P-2000-0138, P-2004-0296. For that reason, this claim was not addressed in the Final Agency Decision nor is it a subject of this appeal. 3 E1 was later promoted and became Complainant’s supervisor. 2019000658 3 c. On November 19, 2014, Complainant emailed E2, her second line supervisor, and requested a meeting to seek guidance on how to handle the Agency’s workload due to the extreme staff shortage. E2 refused to attend a meeting. d. On or about December 4, 2014, Complainant received an unjustified and unsupported counseling memo subject Incident - Communication and Nature of Offense: Conduct Unbecoming of Management. e. Complainant served as a supervisor from January 22, 2015 to February 9, 2015. E2 prevented her from assigning work to her subordinate employees. Further, E2 encouraged subordinate employees to overrule Complainant’s decisions making it impossible for her to execute the duties of her position. f. On January 23, 2015, Complainant’s subordinate employees, E3, and E4 and E5 alleged Complainant referred to E3 as “a liar and was hostile to her during a meeting.” g. On January 27, 2015, Complainant met with E6, Branch Chief and E7, Deputy Chief, to express her concerns about E5 being in collusion with subordinate employees to foster retaliation. h. On February 6, 2015, Complainant met with E6 and E7. During that meeting, Complainant stated that she was subjected to unwarranted interrogations, investigations, questions, forced to prove a negative regarding “false portrayals” and negative claims of subordinate employees. The record contained a statement that Employees who worked with or around Complainant felt that they had to take sides. i. On March 25, 2015, E6 accused Complainant of absence without leave. Because she requested permission to use comp time in lieu of sick leave, she was able to request comp time, according to policy. j. On April 15, Complainant alleged that she received an unjustified counseling memo; failure to meet critical 50K review due date deadline. During the period of time at issue, Complainant was not in approved leave and was relieved of all duties. E1 issued the counseling letter on the same day. She filed her affidavit that morning regarding Complainant’s EEO case. k. On or about May 6, 2015 to September 28, 2016, E1 isolated Complainant by refusing to communicate with her in person and forcing Complainant to communicate through email, while others, including Complainant’s subordinate employees routinely spoke with E1 in person. l. On or about April 2016, E1 reported Complainant to the OIA [Office of Internal Affairs] Case Number OIA-2016-01918, where she cited false allegations about Complainant. 2019000658 4 m. On or about April 2016, E1 again reported Complainant to OIA Case Number OIA- 2016-02777 where she made false allegations about Complainant. n. Complainant contended that she was being held to a higher standard when writing performance log entries than E1 or her subordinates that are minorities. o. On or about May 2016, E1 “unjustifiably” and without notice to Complainant, changed the ratings of Complainant’s subordinate employees. p. On or about August 7, 2016, Complainant received a counseling memo for a conversation that took place in E1’s office with a subordinate employee. The information written was inaccurate and the conversation was taken out of context. E1 stated she was going to write A1 up also, but only wrote Complainant up. q. On the following dates, E1 had subjected Complainant to negative facial expressions and attitudes, snide remarks, second guessing, micromanagement, disparaging comments and nitpicking regarding her work product, including: 1. On or about September 12, 2016, E1 berated Complainant for attaching a prior email dated 9/9/16, subject miscellaneous receipts, to answer one of her questions of why E8 did not have access or was trained to process deposits in that particular email. Complainant was on a phone call on her headset with a line staff that heard the entire conversation; 2. On or about September 27, 2016, E9 came to Complainant’s office to inquire about giving Complainant’s staff paperwork to establish an Accounts Receivable. E9 did not comprehend what was needed to be provided and had E1 come to the office. E1 started speaking to Complainant in a very slow manner as “if she was a special needs person, mocking and taunting Complainant.” Later that day, in a meeting, Complainant was accused of throwing paperwork into her face. That allegation proved to be false, as no paperwork was thrown. 3. On or about September 28, 2016, E1 stated that Complainant had unreasonable expectations to have all work accomplished and was accused of placing Complainant under stress and pressure causing her anxiety. Complainant blamed E1 for the shortage. 4. Complainant contends that “they have sought to hamper her authority as supervisor” by making false statements about her as well as encouraging subordinate employees of her to circumvent the chain of command, to question her authority, to participate in insubordination, to make false reports and to otherwise undermine the authority of Complainant. The retaliation and 2019000658 5 harassment claimed by Complainant was also in the form of email, verbal counselling sessions and memoranda, as described below. r. On November 7, 2014 Complainant received an email from E1 wherein she claims that E1 “falsely” accused Complainant of engaging in derogatory, disrespectful and unprofessional communication towards her during an early morning conversation on the same day. None of this was ever expressed to her verbally during the conversations. s. From May 2015 to September 2015, Complainant contends that there is insufficient training and lesser experienced employees occupied higher level positions. t. On October 2016, Complainant claimed that she was improperly detailed and was required to remove all her personal items out of her office into a cubical. She complained that other employees did not have to remove their personal items. Other Agency employees stated that they often had two office locations, but expressed that additional locations were available and could have used them to store items needed for work. u. Complainant requested a Varidesk. Initially, it did not arrive. However, after Complainant complained about its status, one was provided. v. Complainant expressed that she believes she is isolated and characterized as a person whom other employees should avoid. w. Complainant believes that E1 has staff watching her who report back to her. x. Between October 2016 and the present, E1 claims that Complainant was guiding and directing employees to file EEO cases. y. Complainant claims she received a proposal letter for Failure to Follow Supervisor’s Instructions. z. Complainant received a proposal letter for “Conduct Unbecoming a Management Official.” 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 27, 2017, motion for a decision without a hearing and issued a decision without a hearing on October 24, 2018. 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. 2019000658 6 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. The AJ assigned to this case reviewed the record and determined that a decision could be issued without a hearing after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. We have reviewed the evidence and find that the AJ properly found that the case record had been adequately developed for a decision. Disparate Treatment To prevail in a disparate treatment claim such as presented here, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). - Complainant not considered for Acting Business Administrator position The Agency explains that Complainant was considered for the Acting Business Administrator position but was not selected because “several of the office's staff had been recently filing grievances against” Complainant. Report of Investigation (ROI) at 318, 351. This is a legitimate, nondiscriminatory reason for the Agency’s action. 2019000658 7 Complainant has adduced no evidence to rebut the Agency’s explanation for its action. Indeed, she concedes that she may have been denied the acting position “based on all the accusations and problems in my office . . .” ROI at 220. Complainant has failed to establish that the Agency’s reason for its action is a pretext designed to conceal discriminatory animus. - Re-announcement of Vacancy Announcement Number C0-2014-0232 The Agency explains that Vacancy Announcement C0-2014-0232 was cancelled and reissued because the original announcement erroneously contained an accounting education requirement. The position was a GS-501, which does not have accounting education requirements. ROI at 317, 351. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not dispute that the accounting education requirement was improperly included. Complainant has failed to establish that the Agency’s reason for its action is a pretext designed to conceal discriminatory animus. - Business Administrator Position Complainant was not selected for the business administrator position. According to the Agency, Complainant was placed on the Best Qualified List and considered for the position but was not selected because the successful applicant had more experience working in the Central Office. The successful applicant had Central Office experience in the positions of Contract Specialist and Supervisory Contract Specialist. The successful applicant also was regarded as extremely responsive, service-oriented and able to work well with others. ROI at 283, 301. These are legitimate, nondiscriminatory reasons for the Agency’s action. Complainant does not dispute the Central Office experience of the successful applicant. ROI at 214. Complainant has failed to establish that the Agency’s reason for its action is a pretext designed to conceal discriminatory animus. - Nonselection for Chief of Accounting Operations According to the Agency, Complainant was not selected for the Chief of Accounting Operations position because the selectee’s qualifications and experience were superior to Complainant’s. Specifically, the selectee had experience as the Business Administrator at one of the Agency’s “most complex” institutions and also had experience in a regional office. ROI at 284. These are legitimate, nondiscriminatory reasons for the Agency’s action. Complainant does not dispute the qualifications of the successful applicant. Complainant has failed to establish that the Agency’s reason for its action is a pretext designed to conceal discriminatory animus. - Lowered Performance Rating The Agency explains that Complainant received a lower performance rating for the period in question because the statistical data reflecting Complainant’s performance for the period, including “prompt payment statistics” and “timely travel payment statistics” were significantly lower than for the previous period. ROI at 364. 2019000658 8 These are legitimate, nondiscriminatory reasons for the Agency’s action. Complainant does not dispute the accuracy of the data cited by the Agency. Complainant has failed to establish that the Agency’s reason for its action is a pretext designed to conceal discriminatory animus. Harassment It is well-settled that harassment based on an individual's statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes or her prior EEO activity; (3) the harassment complained of was based on those classes or that 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). Complainant must prove that the allegedly harassing conduct was undertaken because of a protected basis - in this case because of her race, national origin, age, or in reprisal for prior protected activity. Here, there is no evidence that the alleged harassment was based on her protected classes. Nothing in the language used suggests antipathy toward Complainant because of her protected classes. Despite the detailed listing of allegedly harassing incidents in the complainant, Complainant has adduced no evidence of, for example, a racist slur or age-based ridicule that would support an inference of discriminatory animus. Nor do the allegedly harassing incidents reveal any pattern of events from which discriminatory animus could be inferred. The harassment does not appear to have been precipitated by a particular event, such as Complainant revealing a protected characteristic or engaging in protected EEO activity, that could illuminate the motivation for the harassing events. Finally, there is no evidence of differing treatment of people outside Complainant’s protected groups that could explain the reasons for the alleged harassment. Without some evidence showing why the alleged harassment was directed at Complainant, her harassment claim fails. 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 Decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2019000658 9 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2019000658 10 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 September 29, 2020 Date Copy with citationCopy as parenthetical citation