[Redacted], Arlette W., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2021000300 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arlette W.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 2021000300 Agency No. DOI-FWS-19-0638 DECISION 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 September 4, 2020, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Fish Biologist, GS-12, at the Agency’s Uvalde National Fish Hatchery in Uvalde, Texas. On September 3, 2019, Complainant filed a formal EEO complaint. Complainant’s formal complaint consisted of the following matters: 1. Whether the Agency subjected Complainant to disparate treatment based on age (64), sex (female) disability (migraine headaches, knee problems, and 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. 2021000300 2 fibromyalgia), and in reprisal for prior protected EEO activity2 when since October 2018, the Center Director, San Marcos Aquatic Resource Center (Center Director) has not allowed Complainant to earn compensatory time as needed to support hatchery operations. 2. Whether the Agency subjected Complainant to disparate treatment and a hostile work environment based on age (64), sex (female), disability (migraine headaches, knee problems, and fibromyalgia), and in reprisal for prior protected EEO activity when: a. from October 2019 to present, Complainant had not received a FY2019 performance evaluation; b. in October 2019, Complainant was not allowed to provide input into the performance evaluations of her direct report, and she was denied the opportunity to review the performance appraisals of the employees for whom she was designated the Reviewing Official; c. from October 18, 2019 to present, the Center Director has limited Complainant’s ability to perform her job by restricting access to resources and placing additional demands on her; and d. on January 6, 2020, Complainant received a Notice of Opportunity to Demonstrate Acceptable Performance (NODAP). After its investigation into the accepted claims,3 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 final decision. On September 4, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant requests an AJ hearing so that a proper investigation into her claims was can be conducted.4 2 Complainant testified that she requested a management inquiry in 2017 and she filed a prior EEO complaint in October 2018. 3 The record indicates that Complainant’s complaint included additional claims which the Agency dismissed on procedural grounds. Complainant does not dispute the dismissal of these claims on appeal. Therefore, we need not address them further in our decision below. 4 We note that Complainant attached her statements on appeal for the instant formal complaint to her other formal complaint, identified as Agency No. DOI-FWS-18-0523, which she subsequently appealed to the Commission. EEOC Appeal No. 2020000962 (April 22, 2021)). 2021000300 3 Complainant further argues that the Agency retaliated against her when it denied her requests for compensatory time after she had requested that the Agency conduct a management inquiry regarding her claim of a hostile work environment caused by a biological science technician. ANALYSIS AND FINDINGS Preliminary Matter - Hearing Request As an initial matter, we address Complainant’s request for an AJ hearing. Our review of the record supports that Complainant was provided an opportunity, to review the report of investigation as well as to request an AJ hearing or a final decision. Because Complainant elected that the Agency issue a final decision after she had an opportunity to review the report of investigation, we deny Complainant’s untimely request for an AJ hearing. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that she had migraine headaches, knee problems, and fibromyalgia. Complainant explained that the Center Director was aware of his disability in February 2019. We presume for purposes of analysis only and without so finding that Complainant is a qualified individual with a disability. 2021000300 4 Our review of the record reflects that the Agency articulated legitimate, non-discriminatory reasons for its actions. Compensatory Time Requests - Claim 1 Although Complainant asserted that the Center Director denied her compensatory time requests, the Center Director testified that he had never disapproved any of Complainant’s requests. However, the Center Director explained, as corroborated by the Employee Management Relations Supervisor (EMR Supervisor), that pursuant to Agency policy, all employees were required to obtain prior approval for all compensatory time requests. A copy of the compensatory time records reflect that Complainant worked 119.5 comp hours in FY 2018 and 112 comp hours in FY 2019. Performance Appraisal - Claim 2(a) Complainant testified that her FY 2019 performance appraisal was due in November 2019, but that the Center Director failed to issue her an appraisal. The Center Director acknowledged that since October 2019, Complainant has not received a FY 2019 performance evaluation. However, the Center Director explained that during the time the performance appraisal was due, he was in the process of placing Complainant on a NODAP, but Complainant then sustained a work-related injury and went on leave. The Center Director noted that after Complainant was approved to return to work, she was placed on a NODAP for thirty days. The Center Director explained that after he had consulted with Employee Relations, it was determined that Complainant would receive her performance evaluation after the thirty NODAP period ended. Additionally, the EMR Supervisor confirmed that an employee out on leave and issuance of a NODAP can delay the evaluation process. Specifically, the EMR Supervisor stated that the issuance of a NODAP suspends the performance appraisal until the end of the NODAP period. Input in Subordinates’ Performance Appraisals - Claim 2(b) The Center Director acknowledged that during the period at issue Complainant was not allowed to provide input into the performance evaluations of her subordinates. The Center Director explained that during this period Complainant was out of the office on leave due to a work- related injury, and the Center Director therefore completed Complainant’s evaluation duties. Consequently, the Center Director clarified that Complainant was not denied the opportunity. Rather, she was on extended leave due to surgery and recovery. The Center Director also indicated that he consulted with Employee Relations on the matter. Notably, the EMR Supervisor confirmed that while an employee is on leave, an agency cannot require an employee perform his/her duties as a Rating or Reviewing Officials. 2021000300 5 The record indicates that Complainant was approved to return to work by a telework agreement. The terms of this agreement state that Complainant would telework twenty hours per week from October 28, 2019 through November 2, 2019 and she would telework thirty hours per week from November 4, 2019 through November 12, 2019. The terms of this agreement also specified that Complainant’s direct supervisory duties and responsibilities would be assigned to an Acting Project Leader during the period she was teleworking. Restricted Access to Resources - Claim 2(c) The Center Director further denied Complainant’s claim that he restricted her resources or assigned her increased demands during the period at issue. NODAP - Claim 2(d) The Center Director acknowledged that he was responsible for issuing Complainant the NODAP. The Center Director explained, however, that he had previously notified Complainant during meetings, counseling sessions, and during her mid-year May 2, 2019 performance evaluation that her work performance was unsatisfactory. The Center Director also noted that he consulted with Employee Relations before he issued the NODAP. The EMR Supervisor noted that NODAPs are issued to employees whose performance is determined to be below a Fully Successful performance level. The EMR Supervisor further confirmed that the Center Director did not violate Agency policy when he placed Complainant on a NODAP. The record includes a copy of the Center Director’s April 8, 2019 notes detailing the status of Complainant’s performance during her mid-year review. The notes indicate that Complainant was performing below the Fully Successful performance level for some critical elements. Additionally, a copy of the NODAP indicates that Complainant failed to maintain a Fully Successful level of performance in two critical elements on her employee performance appraisal and detailed Complainant’s work deficiencies. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s age, sex, disability, and in reprisal for prior protected EEO activity. Discriminatory Harassment To establish a claim of discriminatory environment harassment, 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 2021000300 6 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 age, sex, disability, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 2(a) through 2(d) is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her age, sex, disability, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2021000300 7 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 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. 2021000300 8 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 May 24, 2021 Date