Leona L.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Jun 23, 2016

0120141237 (E.E.O.C. Jun. 23, 2016)

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

Leona L.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120141237

Hearing No. 570-2012-00103X

Agency No. ATF-2010-00385

DECISION

On January 10, 2014, Complainant filed an appeal concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. Our review is de novo. 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 Management
Analyst, GS-343-13, at the Agency’s work facility in Washington, D.C.

On June 9, 2010, Complainant filed an EEO complaint wherein she claimed that the Agency
subjected her to discriminatory harassment on the bases of her race (African-American), sex
(female), and in reprisal for her prior protected EEO activity when:

1. On April 2, 2010, Complainant received a Mid-Year Performance Progress Review
that included unfavorable critical elements.

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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2. On May 19, 2010, Complainant received a Decision to Suspend for two calendar
days.

Complainant added the basis of disability (lupus, chronic back pain) to the aforementioned
bases with regard to the following claims:

3. On September 9, 2010, the tentative offer of employment for the Supervisory
Management Analyst position under Vacancy Announcement Number 10 MER-177-
CEA was rescinded.

4. On October 13, 2010, Complainant’s Supervisor failed to follow Agency policy for
classification and performance management when she utilized four tier levels for the
critical elements on the performance appraisal instead of the standardized five tier
levels.

5. On October 22, 2010, Complainant received a memorandum terminating her
situational telework agreement.

6. On October 29, 2010, Complainant received a “Fully Successful” rating on her
2010 performance evaluation.

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.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and issued a decision without a hearing on August 14, 2013.

The AJ found that no discriminatory harassment occurred. With regard to claim (1), the AJ
observed that Complainant’s Supervisor issued Complainant a written mid-year performance
progress review stating that Complainant’s performance and productivity did not meet the
expected level with regard to critical elements one, three and four. The AJ noted that the
Supervisor provided a detailed explanation of Complainant’s deficiencies in each of these
critical elements. The AJ found that Complainant did not submit specific evidence which
raised a genuine issue of fact concerning the Agency’s justification for issuing her the mid-year
performance review. With respect to claim (2), the AJ stated that the Supervisor issued
Complainant a proposal to suspend for two days for inappropriate and discourteous behavior
that occurred during November 2009 and January 2010, and failure to follow office
procedures/instructions during December 2009 and January 2010. The proposal to suspend
subsequently was effected as a decision to suspend. The AJ noted that the Supervisor provided
a detailed explanation in support of each of the charges.

In terms of claim (3), the AJ found that Complainant did not provide evidence to create an
inference that her nonselection was discriminatory. The AJ stated that the Supervisor
recommended Complainant’s selection for the Supervisory Management Analyst position.
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According to the AJ, the Associate Chief, Recruitment Hiring & Staffing Center,
recommended that Complainant not be selected for the position because Complainant’s
background investigative report demonstrated that she had personal conduct and credit card
problems. The AJ noted that after the position was readvertised, an African-American female
with prior EEO activity was selected.

With regard to claim (4), the AJ stated that the Supervisor asserted that she evaluated
Complainant’s performance utilizing four tier levels for each critical element instead of five
because the other management analysts in the branch were evaluated with four tier levels and
thus it would have been unfair to assess Complainant with five tier levels. The AJ found that
Complainant did not raise a genuine issue of fact concerning this claim.

With respect to claim (5), the AJ observed that the Supervisor explained that Complainant’s
telework agreement was terminated because she refused to provide the required contact
information for critical and emergency response purposes and she turned in her government-
issued cell phone. The AJ noted that Complainant did not dispute her Supervisor’s assertion
and she did not provide evidence that proved similarly situated employees outside of her
protected groups were permitted to maintain their telework agreements.

As for claim (6), the AJ stated that the Supervisor issued a performance appraisal that included
a detailed rationale for Complainant’s “Fully Successful” performance rating. The AJ found
that Complainant did not provide evidence which created a genuine issue concerning the
specific performance issues in the comment sections of the relevant critical elements.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged became the Agency’s final order pursuant to 29 C.F.R.
§ 1614.109(i). Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect
the outcome of the case.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
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based on her 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).

Therefore, 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 race,
sex, disability, or prior protected EEO activity). Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

We shall assume arguendo that Complainant established a prima facie case of discrimination
under each of the alleged bases. The Agency explained as to claim (1) that Complainant’s
mid-year performance progress review cited deficiencies in managing and planning
assignments and failure to complete mandatory on-line ethics training.

As for claim (2), the Agency asserted that the Notice of Proposal to Suspend was issued based
on discourteous and inappropriate behavior in the workplace. Specifically, the Supervisor
cited an instance where Complainant stated in a meeting with the Assistant Director that she
was tired of the Supervisor asking for information, that the Supervisor’s requests were absurd,
and that the Supervisor did not know what she was talking about. Another incident cited was
when Complainant refused during a meeting to sign for receipt of a memorandum concerning
conduct and performance expectations. Complainant was accused of being disruptive,
disrespectful and argumentative. In another incident, Complainant was cited for not following
the chain of command. The Supervisor stated that Complainant had e-mailed the Division
Chief and Assistant Director after an argumentative discussion concerning her government-
issued cell phone. The proposal to suspend was also based on Complainant’s failure to follow
office procedures/instructions. The matters cited here were the suspension of Complainant’s
government-issued credit card for non-payment, her failure to complete mandatory ethics
training, Complainant’s failure to respond to her Supervisor’s request for a detailed description
of the items to be purchased with TPD supply funds and how they would be used,
Complainant’s failure to provide bank card statements and receipts for purchases,
Complainant’s departure from work without ensuring her leave requests were approved and
when Complainant did not report for work on January 15, 2010, resulting in her being placed
in an absent without leave status.

In terms of claim (3), the Agency acknowledged that Complainant was the leading candidate
for the position at issue. However, the decision to offer the position was contingent on the
background investigation and budget approval. The Agency stated that the background
investigation disclosed that Complainant had personal conduct and credit card payment issues.
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With regard to claim (4), the Supervisor stated she changed Complainant’s critical elements to
the four tier level because it was not fair to rate Complainant at a higher tier level than the
other Management Analysts in the branch.

As for claim (5), the Supervisor stated that Complainant’s telework agreement was terminated
because she refused to provide contact information for critical and emergency response
purposes, and Complainant also turned in her government-issued cell phone. With regard to
claim (6), the Supervisor cited various deficiencies in Complainant’s work performance to
explain her overall rating of “Fully Successful.” Among these problems were that
Complainant’s written correspondence lacked detail and often contained inaccuracies or
deficiencies requiring edit and revision and that during branch meetings and day-to-day
communications, Complainant did not always demonstrate an acceptable understanding of
interpersonal skills toward her Supervisor and others. Complainant was also cited for being
able to utilize only a few elements within the Learning Management System to enter and
manage data related to training programs. The performance evaluation stated that Complainant
demonstrated a limited knowledge in the utilization of system reporting functions and often
failed to produce and analyze reports on training activities as requested by management or
training specialists. We find that the Agency articulated legitimate, nondiscriminatory reasons
for the actions at issue.

We find that Complainant has not established that the incidents at issue constitute a
discriminatory hostile work environment. The matters that are alleged by Complainant lack
sufficient severity or pervasiveness individually and cumulatively to constitute discriminatory
harassment. Moreover, Complainant has not established that the actions at issue are
attributable to any of the alleged bases. The arguments set forth by Complainant do not refute
the reasons presented by the Agency for its actions. Complainant submits arguments where
she maintains that her work performance was better than how she was evaluated, that she did
not engage in misconduct and that she did not take any action to warrant the discontinuation of
her telework agreement. However, these contentions presented by Complainant lack sufficient
support from other witnesses. We find that Complainant has not established that any of the
Agency actions at issue were attributable to discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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

June 23, 2016
Date