[Redacted], Aline A., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2019006010 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aline A.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2019006010 Agency No. DEA-2018-00470 DECISION On September 13, 2019, 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 August 16, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deputy Assistant Administrator for Human Resources Division, at the Agency’s Headquarters facility in Arlington, Virginia. On May 11, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and an ongoing hostile work environment/harassment on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity when: 1. On January 12, 2018, Complainant received an accelerated review period of her 2018 Performance Appraisal from her first-line supervisor (Supervisor1), signed 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. 2019006010 2 by her second-line supervisor (Supervisor2), which lowered her appraisal to unsatisfactory; and 2. On January 16, 2018, Complainant received a memo detailing her from the Human Resources Division (HRD) to the Office of Security Programs (OSP) (memo stated reassignment) with no explanation regarding why she was being detailed and if she would be completing work at an executive level. In support of her claims, Complainant alleged the following: a. On January 12, 2018, Complainant received an accelerated review period of her 2018 Performance Appraisal from Supervisor1, signed by Supervisor2, which lowered her appraisal rating to “unsatisfactory.” Complainant stated that she was being targeted as having performance problems. She further stated that the appraisal consisted of false and untrue statements, both professionally and personally. b. Complainant alleged that, on January 12, 2018, her performance appraisal consisted of false statements made by Supervisor1, one of which claimed that she caused the government to overpay by $500, for an Office of Personnel Management (OPM) interagency agreement. Also, during this performance meeting, Complainant stated to Supervisor1 that several staff members noticed a co-worker (CW1) was pre-occupied with her phone and not viewing the presentation. Complainant stated that Supervisor1 became angry and stated, “you are on your phone all the time.” Complainant stated this was a false statement. c. Complainant alleged her performance appraisal did not accurately reflect her performance and program/process contributions to the HRD. She submitted a response on January 25, 2018, addressing the performance statements and providing a copy of her 2016 and 2017 Accomplishment Reports for review by the Performance Review Board (PRB). d. On January 16 and 18, 2018 and February 5, 2018, Complainant requested information regarding the PRB process concerning her performance appraisal. She stated, on February 15, 2018, she was sent generic information from the Executive Resources Program Manager but no specific guidance. On February 22, 2018, Complainant was informed by the Executive Resources Program Manager that she was not aware of any documents to explain the PRB process and the process does not create a right for an employee to provide materials or follow-ups. e. On January 18, 2018, Complainant was notified by Supervisor1 that her performance appraisal was sent to the PRB and she had until January 25, 2018 at 5 pm to respond. On January 25, 2018 at 6:45 pm Complainant responded and apologized for the delay. Complainant stated that Supervisor1 wrote in the Agency response that Complainant’s submission was late, which showed Complainant was a poor performer. Complainant stated this statement was intentional to show her in a negative light. f. On January 16, 2018, Complainant received a memo detailing her from the HRD to the OSP with no explanation regarding why she was being detailed and if she 2019006010 3 would be doing work at the executive level. Complainant stated that Supervisor1 told her that, effectively immediately, Complainant was not to complete any HR work. Complainant felt that she was being treated poorly and stated to Supervisor1 that she expected to be treated as a professional and with respect. g. On January 16, 2018, Complainant met with Supervisor2 and he stated that he was detailing Complainant to OSP because they had a lot of special projects that needed to be done. Supervisor2 stated that he could not meet with Complainant without having witnesses present and called two of his staff members into the office. Complainant stated that she asked about being detailed to the Office of Training based on her work experience. Supervisor2 said that was not an option, OSP was her only option. Supervisor2 stated that, effective immediately, Complainant should not hire any more people or make any more HR decisions. Complainant felt he was demeaning and stated to him that she expected to be treated professionally and that she had done nothing wrong. h. On January 17, 2018, Complainant met with the Deputy Chief Inspector from OSP. Complainant stated that she asked about the special projects that needed to be completed per Supervisor2 and the Deputy Chief Inspector’s response was of surprise as he stated, “Special projects? I guess we can define them together.” Additionally, on March 20, 2018, after being reassigned to OSP, Complainant stated to the Deputy Chief Inspector that Supervisor2 said he had a lot of special projects that needed to be completed and the Deputy Chief Inspector responded that was not true. i. On February 27, 2018, HR had an all-hands meeting attended by the Acting Administrator (AA), where he informed the HR staff that he did not believe HR was having any performance problems and reassured everyone that things were going well in HR. Complainant stated that this was a contradiction to the feedback and performance information that Supervisor1 had directed towards her. Complainant further stated that the fact that AA made these statements to the HR Team after she was detailed to OSP showed that he was trying to provide support to Supervisor1 for the actions taken against Complainant. j. Complainant asserted that the detail to the OSP was made with no review of her qualifications or options for consideration. The detail was made with no planned or continuous work assignments. The Agency accepted the complaint and conducted an investigation which produced the following results: Complainant alleged that she had been subject to harassment and a hostile work environment in reprisal for challenging her October 2017 and January 2018 Performance Appraisals. Complainant attested that, in May 2017, AA informed all the HRD managers that HRD had performance problems and, in response, Complainant placed her GS-14 and GS-15 level employees on 90-day strategic improvement plans. She attested that she also told AA that she was having problems with Supervisor1 being disrespectful and unprofessional to her. 2019006010 4 Complainant attested that, in June 2017, Supervisor1 told Complainant that she was the performance problem and placed her on a performance improvement plan (PIP). Complainant alleged that this was in retaliation for her statements to AA. The 2018 performance appraisal period was October 1, 2017 through September 30, 2018. Complainant attested that, on January 12, 2018, she received an appraisal from Supervisor1 that shortened her performance period from October 1, 2017 to January 12, 2018 and included a performance appraisal rating of “unsatisfactory.” Complainant alleged that this action was taken to accelerate her rating so that she would have two negative ratings within a three-year time period and, consequently, could be subject managerial action. Complainant attested that the January 12, 2018 appraisal indicated her performance and HR were getting worse and that Supervisor1 made several false and misleading statements. AA attested that the accelerated review was initiated because of the continued issues and performance problems in HR. He attested that he agreed to move forward with it after discussions with Supervisor1 and the Chief Counsel. AA acknowledged that he was not directly involved in Complainant’s performance rating and did not review her appraisal, but he attested that she received a rating of unsatisfactory because she demonstrated a lack of ability to perform. AA attested that Complainant was not targeted but was placed on a PIP because she struggled to perform. He attested that he believed the statements in Complainant’s performance appraisal were accurate based on information provided by Supervisor1 and Supervisor2, as well as his own conversation with Complainant during which she indicated that she was unable to hold her staff accountable. AA attested that, after the performance evaluation, he did not think it was appropriate for Complainant to remain in HRD and he spoke with Supervisor2 about detailing her to OSP. He attested that he knew of an ongoing project involving a review of position descriptions that did not require daily communication with HR staff but would allow Complainant to be a productive employee. He attested that the detail was below SES level and did not include the supervision of employees. AA attested that, regarding his comments in the all-hands meeting, he made the statement to reassure the entire HR staff that he did not believe the entire HRD needed to be on a PIP. Supervisor2 confirmed that AA spoke with him about the accelerated performance appraisal period and, while he was not involved in making the decision, he understood that the decision was made because Complainant failed to complete her job duties in an acceptable manner and had ongoing performance issues. He attested that he concurred with the performance appraisal after speaking with Supervisor1 and confirming that it was a fair and accurate assessment of Complainant’s work. He also attested that management tried to work with Complainant towards improving her performance by placing her on a PIP. 2019006010 5 Supervisor2 attested that it was common knowledge that Complainant failed to hold her subordinates accountable. He denied treating Complainant in a demeaning manner. Supervisor2 attested that he believed Complainant was detailed because she had failed in working successfully in HRD, had created morale issues, and had worked against Supervisor1. He confirmed that the detail became Complainant’s permanent reassignment on March 19, 2018, and Complainant was downgraded from SES to a GS-15 level employee. Supervisor1 denied treating Complainant poorly or unprofessionally. She explained that, in June 2017, she placed Complainant on a PIP to alert her that her performance level was below the acceptable level and to provide coaching and guidance to raise her performance to an acceptable level. She attested that Complainant’s performance had not improved at the end of the PIP. She attested that Complainant had been advised that, if her performance level stayed at that level or dropped even lower, she could be subjected to an accelerated review period to promote the efficiency of the service. Supervisor1 attested that, after her October 2017 review, Complainant asked about procedures to challenge her performance appraisal and, after the higher-level review was completed and Complainant’s rating was sustained, the appraisal was then sent to the PRB who also sustained the rating. Supervisor1 attested that she gave Complainant another performance rating in January 2018 and Complainant challenged that rating through the same process. Supervisor1 attested that she decided to give Complainant an accelerated review period because her performance had declined. Supervisor1 noted that, by that time, Complainant’s performance was already below the acceptable level. Supervisor1 denied Complainant’s allegations that she included false and untrue statements in the 2018 performance appraisal. She described a situation involving a mismanagement of government funds and indicated that Complainant had no answers to her questions regarding addressing the situation and failed to meet deadlines to update her on the situation. Supervisor1 also attested that she included in the appraisal that Complainant was a poor performer based on Complainant’s staff failing to complete assignments or not meeting deadlines and Complainant’s failure to hold the staff accountable. Supervisor1 also attested to having to direct Complainant to processes to monitor payroll and to Complainant being unable to provide answers during meetings which indicated she did not understand the relevant payroll processes. Supervisor1 also attested to having observed Complainant on her phone during several meetings. She also denied that she wrote anything to the PRB that was intended to show Complainant in a negative light. Supervisor1 attested that she discussed Complainant’s poor performance with Supervisor2 and Complainant was detailed because of her lack of performance that was hindering the progress within HRD. The Deputy Chief Inspector attested that, prior to January 16, 2018, AA called him and asked him if he needed help with work, and, after he said that he did, AA told him that Complainant would be reassigned to his office. He attested that he was informed that Complainant would be 2019006010 6 detailed to his office while the Agency reviewed her performance appraisal and that she would be working on special projects. He attested that he was surprised that Complainant had been detailed to work on the special projects at issue because they require highly specialized knowledge, training, and experience and Complainant did not have the training and experience to contribute to these projects. He attested that Complainant was not given work at the SES level nor was she provided a performance work plan. The record contains several statements from GS-13, GS-14, and GS-15 level employees in HRD in support of Complainant. They generally attested that Complainant had assisted in the growth of her subordinates and disagreed with management’s statements regarding Complainant’s performance, meeting goals, and holding staff accountable. 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 instant appeal followed. On appeal, Complainant asserts that she was not given a fair and unbiased review and alleges that the Agency merely repeated management’s false and misleading statements as facts and failed to address or acknowledge her issues and supporting documentation and witness testimony. In response, the Agency argues that it did not discriminate against Complainant or subject her to a hostile work environment and that the Commission should confirm its final decision. In so doing, the Agency asserts that Complainant has not meet her burden to establish by a preponderance of the evidence that its reasons for its actions were unlawfully discriminatory or retaliatory. ANALYSIS AND FINDINGS 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”). 2019006010 7 Harassment Claim To establish a claim of hostile environment 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 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 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 race and/or sex. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. In the instant case, Complainant's harassment allegations reflect Complainant’s disagreement with her supervisors’ managerial decisions, such as performance appraisals and assignments, and general workplace disputes and petty annoyances between Complainant and her supervisors. Without evidence of an unlawful motive, we have found that similar disputes relating to managerial decisions do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the allegation that Complainant's race or sex played any role in the incidents at issue. Thus, Complainant's allegations, even if true, are insufficient to support a claim of discriminatory harassment. Disparate Treatment Claims A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. See McDonnell Douglas, 411 U.S. at 802; Furnco 2019006010 8 Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant’s allegations regarding her performance appraisal and reassignment to a position that ultimately changed her status to a GS-15 level position, from an SES position give rise to claims of disparate treatment. However, even if we assume that Complainant established a prima facie case of discrimination, her claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant had been placed on a PIP because her performance level was not acceptable and, when she did not improve by the end of the PIP, she was subjected to an accelerated review period, to promote the efficiency of the service. The Agency explained that Complainant was given a rating of “unsatisfactory” because of her poor performance. We recognize that Complainant disputes the Agency’s determination that the unsatisfactory rating was an accurate reflection of her work. However, the record shows that Complainant appealed her performance ratings to a higher-level review and the ratings were sustained, and then the matter was sent to the PRB and the ratings were sustained again. We also note that the record contains statements from Complainant’s former subordinates that support Complainant’s contentions. However, these employees are not in as good a position to assess Complainant’s effectiveness as an executive leader as other executive leaders in the organization. Regarding her being detailed and, ultimately, placed in a GS-15 position, AA explained that, in light of Complainant’s performance evaluation, he did not think it was appropriate for Complainant to remain in HRD. He attested that he chose to place her on a detail to work on special projects that did not require daily communication with HR staff but would allow Complainant to be productive. Although Complainant alleged the Agency acted with discriminatory and/or retaliatory animus, the record does not establish by a preponderance of the evidence that the Agency acted because of her race and/or sex. Therefore, her discrimination claims fail. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 2019006010 9 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 2019006010 10 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 June 28, 2021 Date