[Redacted], Anya V., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Nov 10, 2021

Appeal No. 2021001059 (E.E.O.C. Nov. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anya V.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021001059 Agency No. FBI-2019-00027 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 18, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 a Management and Program Analyst at the Agency’s Logistics Management Unit, Directorate of Intelligence in Washington, D.C. Complainant stated that her work environment was uncomfortable due to “sexual innuendos and actions” by her first-line supervisor (S1) (age 69, disability, Caucasian, male, heterosexual). Report of Investigation (ROI) at 101. 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. 2021001059 2 Specifically, Complainant stated that in July 2018, S1 asked about employees’ preferences for chicken and repeatedly stated that he “liked thighs.” Complainant stated that when a Unit Chief (UC1) came to discuss issues with her Agency-issued cell phone, S1 stated to UC1 that he would “take her on his lap and spank her butt.” Complainant stated that a Security Specialist (SS1) informed her of a time when she had lunch with a friend and S1, who stated that he would “love to lie in between those every night,” giving them the impression that he was referring to SS1’s friend’s chest. ROI at 103-4. Complainant stated that in October 2018, S1 asked employees if they wanted kisses, while holding out chocolate Hershey’s kisses. Complainant stated that S1 put his hand on her shoulder when he asked if she wanted a kiss, and when she responded “no,” S1 stated, “[Complainant] doesn’t want a kiss from me.” Complainant stated that on another occasion, S1 stooped under her chair and stated that an M&M candy had rolled under Complainant’s desk. When Complainant stated that she would retrieve the candy, S1 responded that he would get it and, “I’m not trying to look under your dress or anything.” Complainant stated that when S1 stood up, he was holding a green M&M. ROI at 105-7. On November 1, 2018, S1 and the Section Chief (SC) (age 56, no disability, Caucasian, male, heterosexual) issued Complainant a Performance Improvement Plan (PIP) because her performance was unacceptable in the critical element of Communicating Orally and in Writing. S1 noted that the PIP would last for 90 days and that failure to achieve an acceptable level of performance could lead to a reassignment, reduction in pay and grade, or removal from federal service. ROI at 470-5. Complainant retired in December 2018, prior to the conclusion of the PIP. ROI at 100. On December 19, 2018, Complainant filed an EEO complaint alleging that the Agency: 1. discriminated against her on the bases of race (African American), sex (sexual orientation of heterosexual),2 disability (physical) and age (57), and in reprisal for prior protected EEO activity, when on November 1, 2018, Complainant was placed on a PIP; and 2. subjected her to sexual harassment from the summer of 2018 to November 2018, when S1: a. shouted in a loud voice that he loved thighs; b. threatened UC1 with a spanking; c. made an inappropriate remark about a woman’s chest; d. discussed giving Complainant a kiss; and 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021001059 3 e. denied that he intended to look up Complainant’s dress. The Agency accepted the above claims for investigation, but dismissed four claims involving discrete acts, which occurred between January 2017 and August 2018, as untimely.3 ROI at 74. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI 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 Agency found that the managers presented legitimate, nondiscriminatory reasons for placing Complainant on a PIP due to her performance, and that Complainant did not provide any evidence to corroborate Complainant’s high opinion of her own performance. The Agency noted that Complainant alleged that S1 made comments about her age and retirement, but that this was not probative evidence of discriminatory intent based on age. Regarding Complainant’s sexual harassment claim, the Agency found that there was no evidence to support her allegations that S1 made the comments as stated in incidents 2(b) and 2(c). The Agency then found that no reasonable employee would construe the remaining incidents as harassment. The Agency determined that, while S1’s behavior was off-color and juvenile, his actions did not affect Complainant’s work environment or her wages, benefits, professional opportunities, or other terms and conditions of working, nor created working conditions so severe or pervasive in their hostility that a reasonable employee would find those conditions to be intolerable. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency did not respond to Complainant’s appeal. CONTENTION ON APPEAL On appeal, Complainant argues that she has been treated unfairly by SC ever since she disagreed with him in a “No Retaliation” meeting, which was a time when employees could openly express their issues with supervisors. Complainant asserts that SC hired S1 as a “scapegoat” to “work [Complainant] out of the system.” 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s dismissal of these claims; as such, we will not address them in the instant decision. 2021001059 4 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 (EEO MD-110), at Chap. 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”). ANALYSIS AND FINDINGS Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based her age, disability, race, sex, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for placing Complainant on a PIP. S1 stated that as a GS-14 level employee, Complainant was expected to produce well-written documents as well as analyze and relay data in an organized and comprehensive format. S1 stated that when he attempted to provide guidance and assistance, Complainant became defensive. S1 stated that he had to constantly edit and rewrite Complainant’s communications. ROI at 121-2, 124. SC stated that he was regularly presented with Complainant’s work product, which were routinely incomplete, inaccurate, and improperly researched, with the most significant issues related to deficiencies in her verbal and writing skills. SC added that customers provided feedback that Complainant’s performance was poor, due to an inability to relay cogent or accurate information to others. ROI at 139. 2021001059 5 We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that SC treated her unfairly ever since the “No Retaliation” meeting, and that SC hired S1 as a “scapegoat” to “work [Complainant] out of the system.” However, Complainant did not provide any evidence to support her assertion or show that the management officials’ reasons were not worthy of belief. Rather, the record contains a statement from the Management and Program Analyst (MAPA) in the Human Resources Division, who reviewed the PIP and supporting materials, and concurred that the PIP was appropriate. MAPA stated that there was “strong support” for the PIP, due to inconsistent and inaccurate information, and substantial grammar and spelling errors in Complainant’s work product. ROI at 151-2. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We note that while the record contains witness statements that support Complainant’s contention that she was treated unfairly, there is no evidence of an unlawful motivation. A Staff Operations Specialist (SOS) stated that the “PIP was unfair,” and that managers would blame subordinates for any issues. However, SOS stated that S1 characterized Complainant as “incompetent.” ROI at 169. In addition, a former supervisor (FS) stated that the majority of the information that SC received about Complainant was filtered through a former Unit Chief (UC2), who had “negative preconceptions” about Complainant. FS stated that UC2 expressed that the members of Complainant’s former unit were “not good performers,” but FS specified that UC2 did not make comments related to Complainant’s age, race, gender, disability, sexual orientation, or EEO activity. ROI at 161-2. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, race or sex, or in reprisal for prior protected EEO activity, when it placed her on a PIP. Sexual Harassment To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the 2021001059 6 work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). We find that Complainant belongs to a protected class and that she alleged that she was subjected to unwelcomed conduct. However, the record does not support that S1 made all the alleged statements, as described by Complainant. For incidents 2(b) and 2(c), S1 denied making the alleged comments. In addition, UC1 and SS1 stated that they did not recall the respective incidents, despite their opinions that S1 had a tendency to make offensive remarks. ROI at 127-8, 177, 184-5. Regarding incident 2(e), S1 stated that he retrieved the M&M from under Complainant’s desk because he was concerned that someone could slip on it, but he denied stating that he was not trying to look under Complainant’s dress. ROI at 129. Complainant stated that another Security Specialist (SS2) was present at her desk; however, SS2 specifically stated that she did not witness S1 trying to retrieve the M&M from under Complainant’s desk. ROI at 106, 197. Even assuming that the remaining two incidents were based on Complainant’s sex, we find that S1’s actions of repeatedly stating that he “liked thighs,” when discussing chicken, and asking if Complainant wanted a chocolate “kiss” were not severe or pervasive to rise to the level of an intimidating, hostile, or offensive work environment. As such, we find that Complainant did not establish that the Agency subjected her to sexual harassment.4 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. 4 However, we caution the Agency regarding S1’s behavior. While we found that S1 did not subject Complainant to sexual harassment in the instant complaint, the record evidence shows that other employees stated that S1 was known to make inappropriate comments. For example, SOS stated that S1 made comments that could be perceived as sexual innuendos, such as SOS having “been a bad girl,” and witnesses stated that S1 had a reputation of being “handsy” and “touchy-feely.” ROI at 170, 197, 190. When a witness complained to SC about Complainant’s behavior, SC responded that S1 was “just a dirty old man.” ROI at 191. We remind the Agency of its obligation to take immediate and appropriate corrective action in response to employees’ complaints of inappropriate behavior. 2021001059 7 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). 2021001059 8 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 November 10, 2021 Date