Nancey D.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

2019002869 (E.E.O.C. Jan. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancey D.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2019002869 Hearing No. 570-2016-00952X Agency No. HS-FEMA-01763-2013 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 23, 2019 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Director, Human Resources in Washington, D.C. On September 20, 2013, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (African American), and age (42) when: 1. On June 13, 2013, the acting Deputy, Chief Component Human Capital Officer (CCHCO) called Complainant into her office and gave her a letter of Written Counseling. When Complainant refused to sign the letter, the Deputy commented that she "looked different" and acted differently, which Complainant regarded as racially disparaging remarks because 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. 2019002869 2 such comments were never made to Caucasian, Asian-American, or Asian-Pacific American employees. 2. On June 3, 2013, the acting Deputy informed Complainant that she was being reassigned from a Division Director to a Branch Chief. While the effective date of the reassignment was June 16, 2013, beginning in early March 2013, her duties as Division Director were systematically assigned to newly created positions held by younger and primarily Asian- American or Asian-Pacific American employees. 3. The acting Chief Component Human Capital Officer frequently mentioned "surrounding himself with smart people" (which Complainant interpreted to mean Asian-Americans or Asian-Pacific Americans), which she regarded as derogatory to herself as an African American. Further, the acting Chief tolerated racially disparaging comments (unspecified) from his senior managers. 4. The acting Chief never permitted Complainant to serve as acting Deputy, while that opportunity was rotated to three other employees, none of whom are African American. 5. On June 13, 2013, while Complainant was on the telephone, the acting Deputy Chief, tossed a paper across her desk and said, "we need to talk about this." 6. On June 12, 2013, the acting Deputy Chief, entered Complainant’s office and told her to "get in her office" because the information Complainant provided in a Telework report was all wrong. 7. On May 15, 2013, in a discussion with the acting Deputy Chief about an alleged disclosure of Personally Identifiable Information, the acting Deputy said to Complainant, "oh you are smart," and that she was always in her office with the door closed "angry" all the time, which Complainant considered as derogatory, insulting, and stereotypical comments. 8. On March 5, 2013, the acting Chief told Complainant that she no longer had oversight of Accountability, and he abruptly transferred oversight of that function to the front office. However, the following week, the acting Deputy Chief asked for Complainant’s assistance on an Accountability audit, which contributed to the hostile work environment. Complainant also alleged that she was subjected to a hostile work environment based on race, age, and in retaliation for filing the instant EEO complaint, when: 9. On February 7, 2014, the Deputy Chief issued Complainant an adverse action in the form of a Performance Improvement Plan (PIP). During the meeting, the Deputy Chief insisted that Complainant provide work products that she had previously provided, either to her or to the front office designated management official. The Deputy Chief then told Complainant that, if she had provided them, she needed to provide them again, which she 2019002869 3 did prior to leaving for the day. Subsequently, Complainant was not considered for two detail opportunities (one to Region 2 and the other for "operation clean slate.") 10. On February 21, 2014, the Deputy Chief Component Human Capital Officer reissued Complainant a PIP. The reissued PIP changed the requirements for an acceptable level of performance by adding responsibilities and changing the scope of her original performance plan elements. 11. On March 3, 2014, the Deputy Chief asked Complainant at least twice to ensure that she was logged on to Instant Messaging. Complainant replied and reminded the Deputy Chief of a similar technical problem she had with Microsoft Lync (when Complainant had also been logged in all day). 12. On February 13, 2014, the Deputy Chief asked Complainant more than once to log on to Microsoft Lync, although she indicated that she had been logged on all day. 13. On February 11, 2014, the Deputy Chief sent Complainant an email informing her that the Chief Human Capital Officer is the only one who can approve a hire, following a comment Complainant made during an audit break about her intentions regarding a selection. The Deputy Chief further admonished Complainant for not following provided guidance on this, but Complainant maintains that there is no such written guidance. In the same email trail, Complainant became aware that a GS-14 was detailed to her to "supervise” the Office of Workers’ Compensation Program (OWCP) and help Complainant out. 14. Leadership consistently and deliberately refused to engage in direct communication with Complainant, which circumvented her authority with employees and created uncertainty, ambiguity, and impacted her ability to carry out her supervisory duties. Complainant provided the following examples, but not limited to: a. While Complainant was out of the office between February 10, and February 14, 2014, attending an audit, the Deputy Chief informed Complainant, in a brief email, that an employee was detailed to supervise her team members without prior discussion with her. On February 19, 2014, an hour prior to the announcement to “HC” of the supervisory change, the Deputy Chief interrupted Complainant’s staff meeting to ask whether she had informed the OWCP staff of the staff changes. b. Management provided emails to support staff on complex and program impacting issues, while Complainant was not provided with a courtesy copy, causing her to learn of issues through support staff, rather than from management. There was a continued pattern of management omitting Complainant from agency-wide guidance that affected programs under her oversight, for which she gave specific examples, such as a life insurance issue, “LMPC” responses and availability, and sharing of “VSIPNERA” information. 2019002869 4 c. During Complainant’s February 21, 2014 performance review, the Deputy Chief verbally admonished her for an issue which supposedly covered alleged deficiencies for performance year 2013, yet really occurred in 2014. 15. On July 24, 2014, Complainant met with the Deputy CCHCO to discuss her performance plan for 2014. Complainant told her that the plan was vague, unclear, unfair, and unattainable. When the Deputy made only minor modifications to the plan, in response to Complainant’s comments, she told her that she wanted to discuss it with the “HRO” Operations before the plan was finalized. The Deputy responded that Complainant was still accountable for the plan and the due dates in the plan. At this same meeting, Complainant also requested a copy of her final (signed) performance plan for 2013, which she never received. 16. Between July 14, and August 6, 2014, Complainant’s Status Report Submissions were scrutinized by the “HRO” Operations when Complainant was asked to provide more detail in the report. After Complainant made the requested changes, she was then told that she provided "too much non-essential information that doesn't add value." Complainant maintained that other Branch Chiefs under “HRO” Operations were not subjected to this level of scrutiny, nor were they required to submit such detailed reporting. 17. On August 4, 2014, the leadership sent numerous emails requesting a timeline and summary about the handling of an email from an OWCP claimant that had been routinely handled via email on August 1, 2014 (the day following receipt of claimant's request). These emails from management, requesting details of the handling of the case, required a tremendous amount of time on a case that had already been resolved. Complainant maintained that this level of accountability was not required of other staff members. 18. On July 24, 2014, Complainant learned in an email that a new Associate CCHCO was hired. Complainant was denied the opportunity to compete for this position because the position was never advertised. 19. On June 17, 2014, Complainant learned in an email that an unadvertised reorganization had taken place, which redefined the Staffing and Classification Branch into the Talent and Acquisition Division Branch, which indicated immediate organizational upgrade. This new structure had an adverse effect on Complainant’s career because she was not afforded the opportunity to apply, and because she would report to a supervisor who is at her same grade level. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. 2019002869 5 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and she must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as Complainant’s arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2019002869 6 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). 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. 2019002869 7 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 January 7, 2020 Date