[Redacted], Anisa U., 1 Complainant,v.Kathy Kraninger, Director, Bureau of Consumer Financial Protection, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020000160 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anisa U.,1 Complainant, v. Kathy Kraninger, Director, Bureau of Consumer Financial Protection, Agency. Appeal No. 2020000160 Agency No. CFPB-0033-2018 DECISION On September 6, 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 (Agency or Bureau) August 8, 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Examiner, CN-51, in the Southeast Region of the Bureau's Division of Supervision, Enforcement and Fair Lending, located in Washington, D.C. On July 9, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on race (African-American), sex (female), and age (59) when: (1) on numerous occasions (including May 21, 2018; May 24, 2018; June 25, 2018; June 28, 2018 and continuing) the Bureau required her to travel outside of her regular work schedule; (2) on May 16, 2018, her flight information was changed without her knowledge; and (3) on multiple occasions (including May 14, 2018, and May 17, 2018) the Bureau 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. 2020000160 2 denied her request for overtime. Complainant amended her EEO complaint on November 9, 2018, alleging that she was subjected to discrimination and a hostile work environment based on her race (African-American) when: (4) on multiple occasions (including on or about July 16, 2018; July 27, 2018; and August 2, 2018), the Bureau denied her leave requests and/or discouraged her from taking leave. On December 3, 2018, Complainant amended her EEO complaint again alleging that she was subjected to reprisal (prior EEO activity) when: (5) her 2018 Year-End Performance Summary (YEPS) contained inaccurate statements about her performance. After 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 EEOC Administrative Judge. 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. FACTUAL BACKGROUND Complainant's position requires her to travel to spend periods of time conducting on-site examinations of financial institutions. Complainant is required to travel to the examination site on Monday morning, remain on-site for the week, and travel home on Friday afternoon. Complainant works a 5/4/9 schedule,2 with duty hours normally occurring between 6:00 a.m. to 3:30 p.m. Claims 1-3 - Travel Schedule and Overtime The Collective Bargaining Agreement between the Agency and the union states: “Bureau ordered official travel must take place during an employee's regular tour of duty to the extent possible.” Bureau travel policy provides that an employee who is required to travel outside their normal tour of duty will receive Compensatory Time (CT) for Travel for the hours spent in travel status. Ordinarily, the examination team will arrange travel to arrive at the examination site no later than Monday at 1:00 p.m. and to depart no earlier than Friday at 12:00 p.m. This schedule allows the examination team to conduct on-site work for a half-day on travel days. The schedule sometimes results in examiners having to travel outside their normal duty hours, or for travel time to extend beyond an employee's regular eight or nine-hour work day. In those instances, the employee qualifies for CT. On several occasions in May and June 2018, the Bureau required Complainant to travel outside her regular work schedule to ensure both that she arrived at the examination site by 1:00 p.m. Monday afternoon and that she did not depart on Friday without first working on-site. 2 A 5/4/9 schedule is as follows: During week one of an employee’s two-week pay-period the employee works nine hours Monday through Thursday and eight hours on Friday. During week two of the employee’s pay-period, the employee works nine hours Monday through Thursday and has Friday off. 2020000160 3 On at least one occasion when Complainant failed and/or refused to make appropriate travel arrangements, her supervisors directed administrative staff at the Bureau to change her flights to allow her to conduct work onsite prior to her departure for home on Friday afternoon. In response to the Bureau's demand that Complainant remain on-site on Friday morning and as a result, travel outside of her normal work day, Complainant (on multiple occasions) requested that she be paid overtime. The Bureau denied her request for overtime, citing the travel policy allowing for CT. Claim 4 - Leave Prior to the commencement of the examination at issue, the Field Examination Manager in charge of the examination (FEM) (Hispanic, male, 49 years old), requested that all team members provide him with their preapproved leave dates for the examination period. On several occasions in July and August 2018, Complainant submitted new leave requests during weeks that she was scheduled to be on-site at the financial institution. FEM questioned whether Complainant could change the medical appointments that gave rise to the leave requests. When Complainant told him that the appointments could not be changed, FEM approved the leave and allowed her to work at her home duty station during those weeks. Claim 5 - 2018 Performance Summary On November 16, 2018, Complainant reviewed and electronically signed her YEPS. During the review, Complainant claimed that she noticed that information which was present on her six-month review had been removed and things she accomplished during the second-half of the review period were not mentioned. The YEPS did not include several positive statements that appeared in Complainant’s 2018 mid-year review and included the statement that she would benefit from courses “to sharpen her written and examination skills, subject matter expertise, and maintain knowledge.”3 Complainant raised the concerns about her YEPS with her then-supervisor (S1) (African-American, female, 38 years old) who explained that her performance review was reviewed by her second-level supervisor (S2) (White, female, 55 years old). Complainant included a statement as part of her review of her YEPS but did not speak to any other management official about her concerns. In that statement, Complainant included the comment that she filed an EEO complaint regarding the treatment she received during the third quarter examination and that one of the parties included in that complaint had final decision or input on her performance review. On November 20, 2018,4 an Assistant Regional Director (ARD1) (Black, male, 49 years old) added the following statement to Complainant’s performance review without informing her of the changes: “[Complainant] does not consistently communicate exam travel changes or plans in advance to her exam manager for approval. 3 These courses are often referred to TLMs (Teaching, Learning Materials) courses. 4 This occurred four days after Complainant electronically signed her performance review and attached the statement referred to above. 2020000160 4 This has been discussed in many instances. [Complainant] needs to work toward improving her communication with regard to her exam related travel and ensure that all her travel arrangements meet the exam logistics objectives and exceptions.” Complainant complained to Human Resources (HR) once she learned of ARD1’s statement added to her YEPS after her review and signature. In response, HR opened the performance review to allow Complainant an opportunity to add a rebuttal statement. On December 9, 2018, Complainant provided a rebuttal notation indicating that the statement made by ARD1 was untrue and although employed by the Bureau since 2011, she had not had any issues with travel until the third quarter of 2018, where her travel authorizations were changed by someone other than herself. In response to concerns raised by Complainant with respect to these omissions and additions, management stated that Complainant's mid-year review was incorporated in her YEPS. Management also stated that it is standard practice to include statements about actions an employee might take to enhance their performance (i.e., TLMs), and that the statement regarding her need to conform her travel arrangements to examination logistics objectives and exceptions was true and reflected a legitimate management concern. ANALYSIS AND FINDINGS 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”). Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim). 2020000160 5 With respect to Claims 1-4, we find that management officials articulated legitimate, non- discriminatory explanations for the employment conduct at issue as discussed above and Complainant has failed to present sufficient evidence of pretext. We further find the record devoid of evidence that any responsible management was motivated by discriminatory animus toward Complainant with respect to any action taken. Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 their 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). The Commission has stated that: “Harris also applies to cases involving hostile environment harassment on the basis of age . . ..” See Enforcement Guidance on Harris v. Forklift Systems, Inc. EEOC Notice No. 915.002 at 9 (Mar. 8, 1994) (Enforcement Guidance on Harris). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris 510 U.S. at 17, 23; Enforcement Guidance on Harris, at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Id. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). We agree with the Agency that the incidents Complainant cites in support of her harassment claim, taken together, are not sufficiently severe or pervasive to be unlawful. Rather, the incidents challenged by Complainant reflect common workplace disagreements between supervisors and subordinates that relate to managerial decisions and processes, including those relating to assignments, overtime, scheduling, and performance evaluations. Without evidence of an unlawful animus, we have found that similar disputes 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 2020000160 6 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). Even assuming the alleged incidents were sufficiently severe and/or pervasive, the record is devoid of evidence that any responsible management official was motivated by discriminatory animus with respect to any of the alleged incidents. As a result, Complainant has failed to establish that she was subjected to a hostile work environment as alleged. Reprisal - 2018 Year-End Performance Summary Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep’t of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v. Dep’t of Health and Human Servs., EEOC No. 0120150971 (Nov. 22, 2017). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B(2) (Aug. 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The record shows that Complainant engaged in protected EEO activity shortly before the various incidents alleged in Claim 5. While we assume that S1 and S2 were aware of Complainant’s EEO activity prior to the events at issue, the record is devoid of evidence to support the conclusion that ARD1 was aware of Complainant’s EEO activity at the time he added his statement to the YEPS. We also agree with the Agency that the preponderance of the evidence does not support Complainant’s assertions that the Bureau prepared and/or modified Complainant’s performance narrative because she had engaged in protected EEO activity. Complainant failed to establish that the Agency’s articulated legitimate, non-retaliatory explanation for what information was placed in her YEPS (as well as for the absence of information) was a pretext for retaliatory animus. Specifically, we note that S2 testified that all of Complainant's examination assignments were considered in her evaluation. S1 was responsible for collecting the feedback from other Field Managers whom Complainant worked with during the year. 2020000160 7 The record shows that S2 and ARD1 were the reviewing officials and Complainant’s performance feedback was based on her work product and her interactions with others on her examination teams. S1 explained that not all employees’ accomplishments are included in their Year-End Performance Review summaries since listing every accomplishment would make the summary voluminous.5 In addition, the record shows that Complainant’s co-workers also had information from their mid-year narrative left out of their Year-End Performance Review summaries. While S2 denies leaving anything out of the YEPS, she notes that awards are separate from performance for specific acts or behaviors because the annual performance evaluation is based on grade-level performance standards. S2 explains that she, therefore, suggested to all her Field Managers to exclude mentioning awards and to instead describe the behavior that met the performance standard for the individual's grade level. S2 further asserts that the statement that Complainant would benefit from TLMs courses was based on feedback from an Assistant Regional Director (ARD2) who received Complainant's workpapers and notes that recommending courses is part of developmental feedback meant to help the examiner develop to their full potential. We find that the evidence in the record fails to establish that the legitimate, non-retaliatory explanation provided by management officials was a pretext. We also conclude that the preponderance of the evidence does not support the finding that ARD1 was motivated by retaliatory animus when he added his statement to the YEPS. We note that S1 believes this action was retaliatory because she did not find ARD1’s statement to be true and because she felt Complainant was held to a different standard than her counterparts. However, despite S1’s statements, the weight of the evidence supports the conclusion that both ARD1 and S2 held a sincere belief that Complainant needed to improve her communication pertaining to examination-related travel based upon their own observations which include facts established in the record pertaining to Claims 1-3. Moreover, ARD1 denied that Complainant's EEO activity was a factor as he testified that he had no knowledge of Complainant's EEO activities and Complainant has not presented evidence to the contrary. Accordingly, the preponderance of the evidence does not support the conclusion that any of the alleged responsible officials held retaliatory animus toward Complainant with respect to Claim 5. Accordingly, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Accordingly, 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. 5 S1 testified that she was unaware of anyone who had a long list of accomplishments included in their Year-End Performance Review Summary. 2020000160 8 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. 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. 2020000160 9 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 January 22, 2021 Date