Lashaunda G.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

2019000076 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashaunda G.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency. Appeal No. 2019000076 Hearing No. 410-2015-00086X Agency No. ATF-2013-00752 DECISION On September 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 September 7, 2018, 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. ISSUES PRESENTED Whether the Agency correctly determined that Complainant was not subjected to a hostile work environment and reprisal for her participation in protected EEO activity when: 1. On May 31, 2013, management officials ordered her to attend a meeting at which she was questioned about an e-mail she sent to the ATF Director related to perceived retaliation and EEO concerns and advised her that management was very disappointed that she sent the email; 2. On May 31, 2013, management did not permit her to leave the meeting, nor have her supervisors or an EEO representative present; 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. 2019000076 2 3. On June 7, 2013, a scheduled work trip previously approved and budgeted was canceled; and 4. On June 28, 2013, management ordered her to relocate her office. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Investigative Analyst at the Agency’s Atlanta Field Division (AFD) in Atlanta, Georgia. On July 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 as set forth above. Complainant's first-line supervisor from November 2010 to June 9, 2013, was the Group Supervisor (GS1A). Beginning on June 9, 2013, her first-line supervisor was GS1B. Complainant's second-line supervisor beginning on or about June 9, 2013, was Assistant Special Agent in Charge (ASAC1B). Prior to that time, it was ASAC1A. Her third-line supervisor during the relevant period was Special Agent in Charge (SAC), who came to the AFD in late March 2013. Complainant’s EEO Activity Following his arrival at Field Intelligence Group (FIG), the new SAC held a meet-and-greet with employees. Questions were raised about ongoing rumors that GS1A would be reassigned as part of a personnel realignment; and SAC stated that he did not intend to move GS1A. However, a few weeks later, SAC reassigned GS1A, along with several other managers within AFD, and replaced him with ASAC1B. On May 22, 2013, FIG employees met with SAC to discuss his decision to reassign GS1A which, Complainant opined, was unfair. She also pointed out that GS1A, who had been transferred to the FIG in 2010, was once again being unfairly targeted for another move. She later explained that GS1A was the only one who had been moved three times within the past nine years. Witnesses at the meeting asserted that Complainant did not indicate that GS1A was being targeted based on any protected class.2 At the meeting, Complainant told SAC that she planned to send an email to the ATF Director (D1), stating that it appeared that GS1A was being “targeted" for reassignment. She later explained that targeted meant he had been moved three times in the field division; and that in terms of targeted, she made no allusion or statement, neither did she have any reason to believe that the term was associated with an EEO act of discrimination. Complainant then sent the email to D1, with a "cc" to other officials at ATF Headquarters but not SAC. A copy of Complainant's email was forwarded to SAC. 2 Following his 2010 transfer, GS1A had filed an EEO complaint, which had been settled, alleging race discrimination. 2019000076 3 Complainant contended that SAC knew she was going to send the email, adding that the only new statement in it was her informing D1 that there was increasingly unchanging racial polarization in the AFD. She alleged that she was subjected to retaliation when she engaged in protected EEO activity by sending the email to D1. SAC asserted that in the meeting at issue, he explained the reasons for his decision; and that neither Complainant nor any other employee expressed a belief that GS1A’s reassignment was discriminatory or retaliatory. He acknowledged receipt of a copy of Complainant's email to D1 the same evening she sent it; he reviewed it carefully, viewing the email as an extension of Complainant's expression of dissatisfaction with his decision regarding GS1A; and did not perceive it to be an expression of her belief that GS1A's reassignment was discriminatory or that she was raising an EEO issue. In response to Complainant’s email to D1, the Associate Deputy Director (ADD) informed her that SAC was adjusting supervision of the Atlanta Groups to reflect his vision of the way ahead for the Division, adding that based on all the factors he had personally reviewed from the Deputy Assistant Director (DAD) and SAC, he believed the planned adjustments to supervision and staffing in the AFD were best left to SAC’s discretion. Issue 1 After Complainant sent the email, on May 31, 2013, SAC called her into a meeting with himself and ASAC1B. She stated that SAC never discussed the content of her email, and only told her he was disappointed that she failed to "cc” him on it. Complainant stated that she felt uncomfortable and threatened by the presence of ASAC1B who, she explained, had a documented history of discrimination and workplace violence against African-Americans and women. She also asserted that she was threatened with the possibility of reassignment for her actions when SAC stated that as the SAC, he had the authority to reassign anyone he wanted including IAs. Complainant argued that management held the meeting to retaliate against her, contending that she was scolded for contacting D1 about protected EEO matters and was advised in the future to use the chain-of-command; and asserting that SAC and ASAC1B’s actions would reasonably deter someone from engaging in protected EEO activity and would have a chilling effect on an employee's EEO participation. She also testified that during the meeting, both men raised their voices, and she was upset, even emotional, as she left SAC’s office; that she was excused to go home; and that she subsequently visited her doctor. She asserted that SAC was aware of her participation in protected EEO activity at the time of the meeting, specifically mentioning to her that she had served as a witness in GS1A’s previous EEO case; and that both SAC and ASAC1B insinuated their awareness of her participation in GS1A’s EEO complaint regarding the reassignment at issue, which he later filed days after the meeting, adding that management always seemed to know. She stated that she was unsure whether GS1A listed her as a witness in his EEO matter but assumed she was a witness. 2019000076 4 SAC explained that he called the meeting to express his disappointment that Complainant did not follow the chain-of-command when she failed to copy him on the email she sent to D1. SAC also asserted that Complainant raised the issue of retaliation during the meeting, telling him she did not trust AFD management because of the "past acts of others;" and that his counseling her regarding not copying him on the email was retaliation. SAC stated that he had no knowledge of Complainant’s connection to GS1A as a witness in any EEO matter, reiterating that he did not understand her email as conveying a belief that GS1A’s reassignment was discriminatory or as raising any EEO issue. GS1A explained that there was no rigid chain-of-command policy followed in the AFD, adding that while he believed that SAC may have been aware, he did not believe he ever told him that Complainant was involved in his 2013 EEO complaint in any way. Issue 2 Complainant alleged that SAC did not allow her to have a witness or representative present at the meeting in his office; and that he refused to permit her to leave the meeting even though she asked numerous times to do so. She asserted that while neither SAC nor ASAC1B took any action to keep her in the meeting, she felt like she would have been reprimanded if she had gotten up and left, but she was not disciplined as a result of the meeting. SAC stated that Complainant never asked to leave the ten-minute meeting, nor did he prohibit her from doing so; and that the meeting involved no disciplinary action, ending after he counseled Complainant to include him on any future correspondence to D1. He also explained that he wanted ASAC1B in the meeting because he was soon to be Complainant's second-level supervisor; and that he told Complainant she did not need anyone in the meeting because the matter did not concern anyone else. ASAC1B provided supporting testimony, affirming that at no time did either he or SAC tell Complainant she could not leave the meeting. Issue 3 Shortly before the meeting in SAC’s office, Complainant’s coworker (C1) who was traveling from the Macon Field Office, had requested her assistance with the Savannah Field Office (SFO) backlog; GS1A approved Complainant’s travel; and the Budget Analyst (BA) authorized the funding for the trip. The Resident Agent in Charge (RAC) then informed C1, who in turn informed Complainant, that he was cancelling her travel to the SFO for budget reasons. Complainant explained that this was the first time she had ever had a trip canceled after having it approved, and that she had traveled to the SFO to assist with the backlog numerous times without an issue. Complainant also alleged that her name was removed from the list of participants scheduled to travel the following week to the SFO for the Operation Pulaski takedown, explaining that the FIG Intelligence Research Specialist (IRS), who was in charge of the FIG staff's participation in the Operation, had already told her she was going when she received notice that management had canceled her trip. 2019000076 5 She asserted that she had always participated in prior takedown operations; that her name was included in the early plans for Operation Pulaski, and AFD management removed it after her email to D1 and her meeting with SAC and ASAC1B. Complainant, IRS, and GS1A asserted that IAs have a "mission critical" role in takedowns; and GS1A explained that Complainant's role in takedowns was coordinating communications among the multiple law enforcement partners involved, adding that he was not aware of specific budgetary concerns at the time. ASAC1A explained that C1’s travel to Savannah to assist with the SFO's backlog was cancelled because there were significant budget issues during the period at issue, and field divisions were instructed, through an April 7, 2013, memorandum from ADD, to monitor their expenditures and restrict travel to mission-critical travel only. He explained that while he was in the process of obtaining assistance for the SFO with its backlog at the time, "our budget kicked in;" and that he informed RAC, the day before Complainant’s meeting with management, that he was likely going to have to cancel C1’s upcoming travel due to budget concerns. RAC provided supporting testimony regarding the cancelled trip; and both men asserted that they were unaware of Complainant’s plans to travel to the SFO to assist C1 at the time the travel cancellation decisions were made. ASAC1A explained that the AFD was required to reduce participants in the takedown Operation to those employees whom management determined were mission-critical, adding that an IA, Complainant’s position, was not mission critical. The Acting RAC provided supporting testimony, stating that the original number of participants for Operation Pulaski was significantly reduced after the AFD was unable to secure additional funding from ATFHQ for the operation. ASAC1A also explained that he and BA had to come up with a travel plan for Operation Pulaski based on the existing limitations in the AFD's budget; and other officials affirmed that the number of personnel was reduced multiple times before it was ultimately reduced from approximately 50 to less than 20. Only four employees from the FIG ended up traveling to Savannah, including three IRSs and GS1B; and multiple staff from other offices were also cut. Issue 4 Complainant and a Special Agent (SA) had asked GS1A if they could relocate their offices because there were extra offices available due to the reassignment of FIG SAs; GS1A, who was scheduled to soon transfer due to his reassignment, approved their requests, and Complainant moved into an office with a window. She alleged that after GS1B took over as the GS, he asked her to move out of her new office into one without a window, explaining to her that he wanted all of his SAs’ offices and all of his IRSs’ offices lined up together. She stated her belief that AFD management ordered GS1B to move her to a less desirable office as retaliation for her email to D1, adding that she was the only FIG member required to move offices at the time. 2019000076 6 GS1B explained that to maintain space parity among FIG staff with similar grades, position descriptions and responsibilities, he had decided to place two incoming SAs in two of the larger outside-facing offices, and to move the occupant of the office into which he had Complainant move, who was also a GS-13 employee, into the other vacant outside-facing office. He added that he assigned Complainant to the interior office, and decided to convert a small conference room to an office for an incoming IA. He asserted that he had based his decision to move Complainant on his own decision-making process without input from anyone else; and that at the time he made the decision, he had no knowledge of any EEO activity on Complainant's part, including either her email to D1 or her meeting with SAC and ASAC1B. 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 but subsequently withdrew her request. The AJ assigned to the case issued an Order of Dismissal and Remand on September 7, 2018. Consequently, 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. CONTENTIONS ON APPEAL There are no contentions on Appeal. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Complainant’s EEO Activity In order to establish a prima facie case of discrimination for an allegation of reprisal, Complainant must show: 1) that she engaged in protected activity, (e.g., participation in an EEO proceeding as a witness); 2) that the alleged discriminating official was aware of the protected activity; 3) that she was disadvantaged by an action of the Agency contemporaneously with or subsequent to such participation; and 4) that there is a causal connection, or nexus, between the protected activity and 2019000076 7 the adverse employment action. Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff ‘d,545 F.2d 222 (151 Cir. 1976). Here, Complainant may have participated in opposition to discrimination, (a protected EEO activity) meeting element 1 of the reprisal requirements, when she expressed her dissatisfaction with the reassignment of GS1A, which she opined was unfair, at the May 22, 2013, meeting; when she notified SAC that she would send an email to D1; and when she subsequently sent the email to complain that GS1A was once again targeted for reassignment. See Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 276-80 (2009); see also Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) ("[P]rotected conduct includes not only the filing of administrative complaints . . . but also complaining to one's supervisors."). However, she failed to meet element 2 because management was unaware that Complainant was engaging in protected EEO activity when she took the described actions. In fact, witnesses at the meeting asserted that Complainant did not indicate that GS1A was being targeted based on any protected class. Also, she later explained that “targeted” in her email meant GS1A had been moved three times in the field division; and that in terms of targeted, she made no allusion or statement, neither did she have any reason to believe that the term was associated with an EEO act of discrimination. Therefore, Complainant’s expressions of dissatisfaction with GS1A’s reassignment to SAC at the meeting and in her email to D1 did not constitute opposition activity under any EEO purview. See EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, e.g., Examples 4-5 and 8, (Aug. 25, 2016). see also Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (ruling that plaintiff's letter to human resources complaining that job he sought went to a less qualified individual did not constitute ADEA opposition, because the letter did not explicitly or implicitly allege age was the reason for the alleged unfairness). Complainant contended that SAC knew she was going to send the email, adding that the only new statement in it was her informing D1 that there was increasingly unchanging racial polarization in the AFD. However, there is no evidence that either SAC or ADD, who responded to the email, understood it to be opposition activity. SAC viewed the email as an extension of Complainant's expression of dissatisfaction with his decision regarding GS1A; and did not perceive it to be an expression of her belief that GS1A's reassignment was discriminatory or that she was raising an EEO issue. ADD stated in his response that the planned adjustments to supervision and staffing in the AFD were best left to SAC’s discretion. Moreover, Complainant failed to meet elements 3 and 4 because she was not disadvantaged by any action of the Agency contemporaneously with or subsequent to her actions; and there is no nexus between her purported protected activity and any employment action. She has therefore not established a case of reprisal. Even assuming, arguendo, that Complainant established reprisal based on opposition activity; we find that the Agency articulated legitimate, nondiscriminatory reasons for their actions. We also find no persuasive evidence of pretext. 2019000076 8 Regarding Issue 1, SAC explained that he called the meeting to express his disappointment that Complainant did not follow the chain-of-command when she failed to copy him on the email she sent to D1. Complainant affirmed this explanation, stating that SAC never discussed the content of her email, and only told her he was disappointed that she failed to "cc” him on it. Complainant cited no Agency requirement prohibiting SAC from holding such a discussion with her; and even if there was no rigid chain-of-command policy in place at the time as stated by GS1A, SAC acted within his supervisory authority to counsel Complainant regarding following her chain-of- command when expressing workplace concerns to executive management. Complainant’s argument that management held the meeting to retaliate against her, and her contention that she was scolded for contacting D1 about protected EEO matters are unsupported by the record. Moreover, her assertion that SAC and ASAC1B’s actions would reasonably deter someone from engaging in protected EEO activity and would have a chilling effect on an employee's EEO participation are irrelevant because management was unaware of GS1A’s previous EEO activity; GS1A had not filed any EEO complaint regarding his reassignment at the time of the meeting at issue so management could not have been aware; Complainant only assumed, but was not sure, that she was a listed witness in the yet-to-be-filed complaint; and she alleged no discrimination nor did she suffer any adverse treatment based on any retaliatory motive. See EEOC Compliance Manual, Section 8.D.3, Notice No. 915.004 (Aug. 25, 2016). Regarding Issue 2, Complainant alleged that SAC refused to permit her to leave the meeting even though she asked numerous times to do so; that he did not allow her to have a representative or witness present; and that she felt threatened when SAC stated that he had the authority to reassign anyone he wanted including IAs. However, management stated that Complainant never asked to leave the ten-minutes meeting, nor was she prohibited from doing so. While SAC could have held the meeting with Complainant without involving ASAC1B, there is no requirement that representatives or witnesses be present for common workplace supervisor/employee interactions such as the one described in the instant complaint. Besides, there is no evidence that SAC’s statement that he could reassign anyone including IAs was intended as a threat and but rather a reminder that personnel reassignments fell within his supervisory authority. Also, while she felt like she would have been reprimanded if she had gotten up and left the meeting, Complainant affirmed that neither SAC nor ASAC1B took any action to keep her there; and she was not disciplined as a result of the meeting. While Complainant perceived the exchange in SAC’s office as “chiding” and “scolding,” and that both men raised their voices, which upset her, we find that, even if true, no evidence this was done in retaliation against complainant for EEO activity but rather for going outside the chain of command with her email. We find no evidence of actionable management misconduct under the circumstances. In the same vein, we find no evidence of retaliation in Issue 3 when C1’s trip to the SFO, for which she had invited Complainant, had been cancelled; and when trips for participation of non-critical personnel to the takedown Operation were cancelled. 2019000076 9 Management explained that due to significant budget issues, field divisions were instructed to monitor their expenditures and restrict travel to mission-critical travel only; and the AFD was required to reduce participants in the takedown Operation to those employees whom management determined were mission-critical. An IA, Complainant’s position, was not mission critical, and her participation in past operations is immaterial. Notably, C1’s trip to the SFO was cancelled one day before the meeting at issue and management was unaware of Complainant’s travel plans to the SFO to assist C1. We also find no retaliation in Issue 4 when GS1B made the sole decision to relocate Complainant’s office to maintain space parity among FIG staff with similar grades, position descriptions and responsibilities. Moreover, at the time he made the decision, GS1B had no knowledge of any EEO activity on Complainant's part, including either her email to D1 or the meeting that followed it. Therefore, a preponderance of the evidence before us does not support a finding that management took any retaliatory action against Complainant. Based on the foregoing, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim that she was subjected to harassment on the basis of reprisal must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency in Issues 1 through 4 were motivated by retaliatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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. 2019000076 10 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. 2019000076 11 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 August 6, 2020 Date