[Redacted], Ashely H., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Oct 18, 2022

Appeal No. 2022001337 (E.E.O.C. Oct. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashely H.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2022001337 Agency No. 63-2020-00873D DECISION On January 12, 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 December 14, 2021 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 Complainant began Agency employment when she was trained to be a Recruiting Assistant for the Los Angeles Regional Census Center in Stanislaus County, California. She resigned from the position on November 29, 2019, due to a family emergency. Subsequently, Complainant sought to rescind her resignation from the Recruitment Assistant position. She testified that on January 15, 2020, she received a “very unprofessional accusatory, slanderous” phone interview by the Regional Manager for the position. In February 2020, Complainant was called back to work part-time for several weeks as a Recruitment Assistant. She returned to the Agency on August 4, 2020, when she was hired as an Enumerator with the Area Census Office. 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. 2022001337 2 On October 1, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected harassment in retaliation for engaging in prior protected activity with regard to the following claims. 1. She was subjected to harassment (non-sexual) when: a. On or around January 15, 2020, she received write-ups influenced by a Lead Census Field Supervisor; b. In February 2020, she was targeted when she received a verbal warning in training by the Regional Manager for sharing her experience, and then was accused of being an “informant” by an employee; c. On or around August 4, 2020, her training was delayed because management did not provide her with the required access; d. On or around August 8, 2020, she was accused of raising her voice and being rude to the Lead Census Field Supervisor when Complainant was explaining an issue regarding entering her time, and he spoke to her in a harassing manner; and e. In August 2020, Complainant was falsely accused of cursing out others, which accusation was used to justify her termination, and which accusation she found out about on August 14, 2020. 2. On August 10, 2020, she was written-up. 3. On or about August 1, 2020, she was terminated by the Lead Census Field Supervisor.2 After an investigation into her complaint, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on December 14, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful retaliation was established. The instant appeal followed. 2 The record does not contain a copy of Complainant’s termination letter. However, we find that the reasons the Agency provided for the termination were not contested and we therefore determine that we can proceed with a review of the case in the absence of this document. 2022001337 3 ANALYSIS AND FINDINGS Harassment Complainant alleged that management created a discriminatory hostile work environment. 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 her protected bases - in this case, her prior protected activity. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. 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). Regarding claim 1.a., the Regional Manager stated that Complainant was written up in January 2020 when she was a Recruiting Assistant because she did not follow the rules and was “very arrogant and very outspoken.” He added that Complainant was the only employee he asked to be written up as she had been insubordinate and used obscene language in November 2019. The Regional Manager noted further that Complainant responded to a request for overdue information by yelling, being rude, and hanging up on the individuals on the phone requesting the information. Regarding claim 1.b, the Regional Manager stated the reason he gave Complainant the verbal warning in February 2020, was that she continuously disrupted a class she was in and gave new employees incorrect information. The Regional Manager stated that the warning was not an effort to target Complainant, but that she was instead being given a “second chance.” The Area Census Office Manager explained to the EEO Counselor the write-ups which were the subject of claims 1.a. and 1.e. He stated that Complainant received verbal warnings and coaching to encourage her to change her behavior in the workplace. However, Complainant continued to engage in profanity and insubordination towards management and curse at other staff members. Regarding claim 1.c., Complainant stated that she was in contact with a named employee with Census Field Supervisor (CFS), and he told her they would take care of the training issue with management. She noted no reasons were given to her for not being given access. During the relevant period, the Regional Manager was out medical leave. There is no record that any training delays were motivated by discriminatory animus. Regarding claim 1.d., Complainant stated on or around August 8, 2020, she was accused of raising her voice and being rude to the Lead Census Field Supervisor when she was explaining an issue regarding entering her time, and he spoke to her in a harassing manner. Complainant stated that she never notified Human Resources but the Lead Census Field Supervisor told her to forget about it and to “move on,” to which Complainant had agreed. 2022001337 4 Regarding claim 1.e., Complainant stated that in August 2020, she was falsely accused of cursing out others, which accusation was used to justify her termination, and which accusation she found out about on August 14, 2020. She noted the reasons given to her by the Lead Census Field Supervisor was because she cursed out a named employee and the Lead Census Field Supervisor. Despite Complainant’s denials of such behavior, the record reflects that Complainant had engaged in continued profanity and insubordination toward management officials and had cursed staff members. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her prior EEO complaint. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 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 a complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, as here, 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). Regarding claim 2, Complainant stated that she was written up for insubordinate and use of improper or obscene language observed on November 27, 2019, when she was a Recruiting Assistant. An Area Census Office Manager stated that his interactions with Complainant were unacceptable and that she used profanity when speaking with the staff. 2022001337 5 The record supports the Agency’s explanations on this matter and there is insufficient evidence to support the claim that they were triggered by retaliatory animus. Regarding claim 3, Complainant denied that she cursed at anyone. She felt that the Lead Census Field Supervisor defamed her with false write-ups of alleged behavior for which she was never counseled. In addition, Complainant she felt that the Lead Census Field Supervisor defamed her with false write-ups. However, we reiterated the determination of the Area Census Office Manager regarding Complainant’s unacceptable behavior, causing Complainant’s employment to be terminated. We determine that there is sufficient evidence of record reflecting that Complainant had a pattern of not following rules, write-ups, insubordination, giving new employees incorrect information, and using inappropriate or obscene language. In addition, the weight of the evidence shows Complainant was rude to customers requesting information, and when she responded to a request for overdue information, she was yelling and was being rude. In sum, Complainant failed to prove,, by a preponderance of the evidence, that the legitimate reasons proffered by management witnesses for the disputed actions were actually pretext designed to mask unlawful retaliatory animus. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that unlawful retaliation 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). 2022001337 6 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. 2022001337 7 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 18, 2022 Date