Jaunita W.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120172888 (E.E.O.C. Nov. 21, 2018)

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

Jaunita W.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120172888

Agency No. DEA201301198

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403(a), from the July 19, 2017 Final Agency
Decision (“FAD”) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Group Supervisor,
GS-14, at DEA Seattle Division, located in Seattle, Washington.

On November 4, 2013, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination and harassment2 based on sex (female) 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.

2 A fair reading of the record, including Complainant’s Formal Complaint, the Report of
Investigation, and her appellate brief, demonstrates that she also alleged harassment and intended
to include the allegation in Claim 2.
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1. On September 4, 2013, she was transferred from the position of Investigative
Support Center (“ISC”) Manager at Northwest High Intensity Drug Trafficking
Area (“HIDTA”) to Group Supervisor, DEA Seattle Division, and

2. On or about August 2013, the Special Agent in Charge (“SAC”) did not
investigate a subordinate’s claim against Complainant.

The record developed during the Agency’s investigation into these claims provides the following
relevant facts:

In 2008, Complainant began working as ISC Manager, Northwest HIDTA. The position had
been vacated by her supervisor (“S1”) who was promoted to fill the Field Intelligence Manager
(“FIM”) position at Northwest HIDTA. As an ISC Manager, Complainant supervised and
assigned cases for all Northwest HIDTA investigations to both DEA Investigators, and
Washington State Patrol (“WSP”) Criminal Analysts (contractor employees co-occupying DEA
HIDTA office space). Complainant also approved actions through the Agency’s database system,
such as administrative subpoenas, and signed off on DEA Reports of Investigation.

Complainant alleges that S1 harassed her by improperly delegating a portion of his FIM work to
her and through actions related to his “improper relationship” or “close personal friendship” with
one of the WSP Criminal Analysts under her supervision (“C1”). By Complainant’s account, C1
regularly ignored her instructions and circumvented Agency protocol to obtain approval for
assignments of her choosing, then complained about her to S1. Rather than support
Complainant’s supervisory position, S1 would call Complainant into his office in a manner she
believed was intended to intimidate her, and instruct her not to harass C1, obstructing her ability
to assign work and supervise C1.

In August 2013, C1 filed a hostile work environment complaint through WSP after Complainant
suspended C1’s access to the Agency database. Complainant contended that she did nothing
wrong, that she temporarily suspended access when she caught C1 improperly accessing the
database using a different manager’s name. Complainant filed complaints against S1 and C1 the
following month through WSP and the Agency’s Office of Professional Responsibility. As a
result, S1 was stripped of his supervisory duties, but maintained his grade and title. Her
allegations regarding C1 were dismissed, as no violations were found.

On September 4, 2013, Complainant was involuntarily transferred to her current position as
Group Supervisor, DEA Seattle Division. In her new position, Complainant was responsible for
overseeing and providing leadership for the DEA Intelligence Group for the Seattle Division.
Complainant’s second line supervisor (“S2”), Special Agent in Charge, DEA Seattle Division,
directed Complainant’s transfer. S2 testified that C1’s complaint played a role in the timing of
Complainant’s transfer, but maintains that he had been considering Complainant for the position
since he began working at the DEA Seattle Division in 2011.
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According to S2, he transferred Complainant “in order to have a more experienced GS-14”
because the DEA Intelligence Group “requires a much higher level of managerial oversight and
responsibility.” S2 further explained that the timing was “in the best interest of all parties” and
that prior to the transfer he and the HIDTA Director discussed it.

Complainant maintains that the transfer was a direct result of C1’s harassment complaint, and
that she suffered “tremendous professional embarrassment” because of the circumstances of the
transfer. Both S2 and her new first level supervisor (“S3”), the Assistant SAC, DEA Seattle
Division, deny that Complainant suffered embarrassment, because the transfer was lateral and
she was provided more supervisory responsibilities as a result. Complainant points out that her
HIDTA peers in multiple offices, as well as the DEA Seattle Division were aware of the
circumstances of her transfer. As the DEA Seattle Division was in the same building as
Northwest HIDTA, she routinely saw prior colleagues, including S1.

Complainant alleges that S2 and S3 subjected her to a hostile work environment as they made no
effort to prevent encounters from her alleged harasser, S1. Both S2 and S3 state that
Complainant never requested separation. Complainant alleges that S2 further harassed her by
failing to pursue an investigation of C1’s harassment allegations against her. While S2 states
both Complainant and C1’s “dueling claims” were “baseless” Complainant argues that his failure
to investigate left an impression that he accepted C1’s harassment allegation as true and denied
her an opportunity to clear her name.

Complainant also alleges that her involuntary transfer constituted disparate treatment, citing an
“overarching band-aid policy” of promoting male employees accused of harassment rather than
addressing the underlying complaint. Specifically, Complainant argues that S1 received the
promotion after he was named in harassment complaints, to remove him from working with his
accusers. Management knew that Complainant believed she, not S1, should have been promoted
to FIM, as she just completed two years as Acting FIM in another HIDTA Office.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation (“ROI”) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (“AJ”). Complainant timely requested a hearing,
but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b), concluding that Complainant failed to prove discrimination as alleged.

The instant appeal 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
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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”).

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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.
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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

It is well established that the Agency, as the employer has broad discretion to determine how
best to manage its operations and may make decisions, including personnel decisions, on any
basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. In
terms of business judgment, the Commission "does not second-guess the business judgment of
Agency officials regarding personnel decisions without a demonstrably discriminatory motive."
See Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration
denied EEOC Request No. 0520120603 (Jan. 31. 2013). The reasonableness of the employer's
decision may, of course, be probative of whether it is pretext. The trier of fact must understand
that the focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).

Claim 1

Here, the Agency’s legitimate, nondiscriminatory reason for Complainant’s transfer from ISC
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Manager to Group Supervisor is that the DEA Intelligence Group required a strong, experienced
leader at the GS-14 level, and Complainant had been with the Agency for 30 years, and at
Northwest HIDTA since 2008. S2 also appears to argue that he made the personnel decision
believing it would cause minimal impact on operations, as he consulted Complainant’s
supervisors beforehand and because Complainant’s grade and responsibilities were not reduced
and she would continue to work in the same building. Although he acknowledges that the
proximity to C1’s harassment complaint, S1 testifies that the transfer was “imminent” regardless.
We note that an Agency is not required to refrain from non-discriminatory personnel actions it
would otherwise take simply because the employee has engaged in EEO activity. See Sotomayor
v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).

Complainant does not dispute S2’s explanations, but focuses on the timing of the transfer and
lack of investigation, which on their own are not sufficient evidence of discriminatory motive.
We are also not convinced by Complainant’s generalized argument that the Agency has a “band-
aid” policy of protecting its male employees accused of harassment. For favorable treatment of
other employees to be considered as evidence, Complainant must specify a “similarly situated”
comparator employee. Among other things, to be considered “similarly situated,” the comparator
must be similar in substantially all aspects, so that it would be expected that they would be
treated in the same manner. See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7,
2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) citations omitted.
Complainant’s only specified comparator employee is S1, who is not “similarly situated.” While
both were accused of harassment while working as ISC Managers and both transferred afterward,
these events occurred at different times, under different management, and the alleged harassment
arose under different circumstances.

Without more, Complainant’s argument that the Agency's articulated reason was a pretext for
discrimination is unproven.

Claim 2

The Agency’s legitimate nondiscriminatory reason for S2’s failure to pursue an investigation of
C1’s harassment claims is based on jurisdictional grounds, as C1 pursued her complaint through
WSP, not DEA. As with Claim 1, Complainant has not offered comparator or other evidence of
disparate treatment.

Harassment

It is well-settled that harassment based on an individual’s sex 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,
here sex; (2) she was subjected to unwelcome conduct related to her membership in that class;
(3) the harassment complained of was based on sex; (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.
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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 (Mar. 8, 1994).

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 a protected basis – in this case, her sex.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself.

As already detailed above, Complainant has failed to prove that either the transfer or the
investigation matter were motivated in any way by her sex. As such, she cannot prove the
essential motive element of her harassment claim.

CONCLUSION

Accordingly, and having thoroughly reviewed the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s finding that
Complainant failed to establish discrimination as alleged.

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.
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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

November 21, 2018
Date