[Redacted], Allegra P., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Oct 24, 2022

Appeal No. 2022002541 (E.E.O.C. Oct. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allegra P.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 2022002541 Hearing No. 570-2020-00657X Agency No. MINT-19-1367-F DECISION On April 7, 2022, 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 March 10, 2022, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Deputy Director of Legislative and Intergovernmental Affairs, GS-14 at the Agency’s Office of the Director in Washington, DC. On October 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), color (Black), and age (YOB: 1964) 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. 2022002541 2 1. she was not selected for the position of Director of Intergovernmental Legislative Affairs, GS-15, Vacancy Announcement Number 19-MINT-174; and 2. the Chief Administrative Officer (CAO) took negative actions against her, including but not limited to, not asking Complainant job related questions during the interview, inquiring about her work ethic with a peer, publicly chastising her during a meeting, making intimidating gestures, calling Complainant agitated, and shutting down her attempts to discuss the future of the office. 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 over Complainant’s objections, issued a decision without a hearing on February 22, 2022. The AJ found that there were no genuine issues of material fact in dispute. The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for the non-selection and there was no evidence to support Complainant’s assertions of a discriminatory motive. The AJ further determined that the alleged incidents of harassment were neither severe nor pervasive enough to constitute a hostile work environment. The AJ therefore concluded that Complainant failed to establish that the Agency subjected her to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. 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. (Aug. 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). Upon our review of the record as a whole, we find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. We find that the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. While Complainant argues on appeal that additional discovery was necessary in order to properly investigate her claim, she did not identify any additional relevant information which was not included nor does her mere assertion that her claims were not sufficiently investigated suffice to create a genuine issue of material fact. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 0120181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Accordingly, we find that the AJ properly issued a decision without a hearing.2 2 On appeal, Complainant raises a new claim of retaliatory harassment. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. 2022002541 3 We find that the AJ’s decision correctly identified the legal standards for Complainant to prove that she was subjected to disparate treatment on the bases of her race, color, and age. We further find that the Agency articulated legitimate, nondiscriminatory reasons for the non-selection. Specifically, the CAO, who was also the selecting official, stated that the Selectee was more qualified because she had previously worked as a legislative director for two Congressmen in the House of Representatives and had over 15 years of experience in public policy and legislative affairs at various other agencies. See Report of Investigation (ROI) at 203. In contrast, he noted that Complainant had little to no experience in legislative operations, had not worked in the Legislative branch of the government, and had not pursued any professional development relating to public administration or Congressional operations. See ROI at 202. Moreover, the other members of the interviewing panel agreed that the Selectee was better qualified and interviewed better than Complainant. See ROI at 227-32; 242-43. We further find that Complainant did not establish that the Agency’s legitimate, nondiscriminatory reasons for the non-selection were a pretext for discrimination. Complainant cannot demonstrate pretext based on her subjective assessment of her own qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). Moreover, there is no evidence in the record to support Complainant’s assertions of a discriminatory motive. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination are insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Lastly, we find that the AJ correctly concluded that Complainant did not establish that she was subjected to a hostile work environment. The record reflects that the alleged incidents of harassment were the result of general workplace disputes and the routine work assignments and instructions between a supervisor and an employee, which do not constitute a hostile work environment, regardless of Complainant’s subjective perception of the incidents. See Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and complainant do not rise to the level of harassment). Contrary to Complainant’s argument on appeal, the incident where the CAO allegedly placed his hand on Complainant’s shoulder was an isolated incident and not sufficiently severe to constitute a hostile work environment. See Gardner v. U.S. Postal Serv., EEOC Appeal No. 0120101785 (July 22, 2010) (incidents where a See Hubbard v. Dep’t of Homeland Sec’y, EEOC Appeal No. 01A40449 (April 22, 2004). Should she wish to pursue these claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, the date of initial contact will be deemed to be the date on which Complainant filed the instant appeal. Complainant also included additional evidence which she asserts support her claim of harassment. We note, however, that new evidence will generally not be considered on appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). Moreover, a brief glance at the additional evidence shows that the document is heavily redacted and consequently any relevance to the instant claim cannot be established. 2022002541 4 supervisor, among other things, grabbed the complainant’s hand while trying to snatch keys from the complainant were not sufficiently severe or pervasive); Samuel v. U.S. Postal Serv., EEOC Request No. 01A40751 (Aug. 3, 2005) (incident where supervisor angrily yelled and shook his finger at complainant, struck him in the chin with his finger, grabbed him by the shoulder, and ordered him to leave his office was not severe or pervasive enough to constitute harassment). 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 decision finding that Complainant did not establish that she was subjected to discrimination as alleged. 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: 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. 2022002541 5 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 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 October 24, 2022 Date