Janiece H.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120182351 (E.E.O.C. Nov. 2, 2018)

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

Janiece H.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120182351

Agency No. DOI-BIA-17-0555

DECISION

On June 19, 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
May 25, 2018, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst, GS-0343-11 at the Agency’s Office of Information Management Technology in
Albuquerque, New Mexico.

On October 3, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of age (43) when she was subjected to harassment. In
support of her claim of harassment, Complainant alleged that the following events occurred:

1. on April 21, 2017, Complainant alleged that she received a “hostile, harassed,
unwelcomed” instant message on Facebook from her coworker (“Co-worker”)
(born in 1987), which Complainant believes is a personal attack and interferes

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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with her personal time. Complainant maintains she shared the incident with her
immediate supervisor (“Supervisor 1”) during her mid-year review on July 27,
2017.
2. On August 15, 2016, Complainant alleges that the Co-worker entered her office
with hostility and in a raging manner stated, “to stay the hell out of her business.”
Complainant maintains the Co-worker brought her daughter to work that day, and
thus reported the matter to her then supervisor (“Supervisor 2”) who told
Complainant that he would speak with the Systems Branch Chief (“Chief”) who
was the Co-Worker’s supervisor.
3. On April 22, 2016, Complainant alleges the Co-Worker reported her to her
supervisor at that time (“Supervisor 3”), about the procurement training she gave
the Co-worker and the Contractor. Complainant further alleges Supervisor 3’s
communication with her decreased and her involvement and information related
to her job in Operations diminished after that date.
4. On March 22, 2016, Complainant alleges the Co-Worker sent her a rude and
unprofessional email informing Complainant that prior to entering the Co-
Worker’s office, she was to be notified and also informed if she took anything
from the office. On March 18, 2016, Complainant maintains she entered the Co-
Worker’s office in the presence of Supervisor 3 and the Chief to retrieve a
Proximity Card for a new employee. Complainant further maintains she had
requested the card from the Co-Worker but never received it.

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). 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. The
Agency also dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact.

This appeal followed. On appeal, Complainant challenged the Agency’s dismissal of the matter
pursuant to 29 C.F.R. § 1614.107(a)(2). She also asserted that she was called “the old cow”
behind her back. She asked that the Commission reconsider her complaint and render justice.
The Agency asked that the Commission affirm its decision.

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
0120182351

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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 age 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, the complainant must show that: (1) she belongs to the statutorily protected class;
(2) she was subjected to unwelcome conduct related to her membership in that class; (3) the
harassment complained of was based on age; (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).

As to event (1), Complainant averred that through Facebook Instant Message, the Co-Worker
apparently received a “friend” request. Complainant denied sending any “friend” request. The
Co-Worker stated, “Hey, I can’t believe you are seriously trying to add me on Facebook. You
can F with me all you want but once you mess with my kiddos we will never be friends. I’m not
at [the Agency] to make friends and I’ll never be your friend unless you take the time and effort
to get to know me, which I know you won’t…. Take care and have a good fuckin weekend.” In
event (2), Complainant asserted that the Co-Worker entered her office and told her, “to stay the
hell out of her business” on a day when the Co-Worker brought her daughter into the office.
Complainant indicated that the Co-Worker was allowed to bring her child into the office without
permission. Complainant stated that the program was not child proof and that the office and
safety measures were at stake. With regard to event (3), Complainant indicated that she and
Complainant had a conflict with the Co-Worker and described her as being “untouchable and she
can control and call her own rules and she fails to use the chain of command.” Complainant was
concerned because the Contractor had to leave her position due to the experience with the Co-
Worker. Finally, as to event (4), Complainant indicated that the Co-Worker sent a rude and
unprofessional email because Complainant took the initiative to help with the Co-Worker’s job.
In response, the Co-Worker lectured Complainant on how she should not enter her office.

Upon review of the record, we find that there is no evident connection between Complainant's
age and the alleged harassment. Moreover, the alleged harassment appears to stem from
personality conflicts between Complainant and the Co-Worker. The ADEA is not a workplace
civility code. We find that Complainant has failed to establish that she was subjected to a hostile
work environment based on her age.

We note that the Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO Counselor contact. We find that since the Agency has address the merits of
Complainant’s claim of harassment, we need not address the Agency’s dismissal of the
complaint pursuant to 29 C.F.R. § 1614.107(a)(2).
0120182351

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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 finding no
discrimination.

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).
0120182351 5
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 2, 2018
Date