[Redacted], Belia B., 1 Complainant,v.Richard Tischner, Director, Court Services and Offender Supervision Agency, Agency.

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2019004767 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belia B.,1 Complainant, v. Richard Tischner, Director, Court Services and Offender Supervision Agency, Agency. Appeal No. 2019004767 Agency No. CSOSA-EEO-F-16-0041 DECISION On June 7, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 9, 2019 final decision concerning an 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 During the period at issue, Complainant worked as a Senior EEO Specialist at the Agency’s Office of the Director, Office of EEO Diversity and Special Programs in Washington, D.C. Complainant filed a formal EEO complaint2 claiming that the Agency discriminated against her on the bases of race (African-American), color (Black), national origin (American), sex (female), and reprisal for prior protected EEO activity 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. 2 The record reflects while Complainant’s typewritten complaint was undated, the Agency received her complaint on December 22, 2016. 2019004767 2 1. on August 10, 2016, her supervisor lowered the rating on one of the critical elements (Complaints Processing) of her Performance Evaluation for the rating period July 1, 2015 to June 30, 2015, from a 3 to a 2; 2. on August 10, 2016, her supervisor informed her that he was reassigning her from the responsibilities associated with affirmative employment and solely using her as the complaints processing manager, a function she was not allowed to perform for at least four years; 3. on unspecified dates, her supervisor subjected her to harassment/a hostile work environment by belittling, demoralizing and undermining her character and person when: a. her supervisor gave the Hispanic Program Manager permission to relay all the details of an event on October 5, 2016, the National Hispanic Heritage Month, prior to financial approval, contrary to the Agency’s past practice. When Complainant informed her supervisor that his action was inconsistent with the Agency’s past, he told her she was wrong; b. she had been subjected to a hostile work environment over professional disagreements, distrust, and warring ideas on the operational matters of the Agency’s EEO program. Her supervisor has made insensitive comments, is dismissive of any new ideas that she suggests for improvement in the program, and penalties [sic] her (unspecified) when she disagrees with him, he closes his office door and does not speak or interact with Complainant for an entire day. As Complainant was the acting supervisor in her supervisor’s absence, she is unable to determine whether he is in the office when he isolates himself from her; c. Complainant’s supervisor questioned Complainant’s trustworthiness by requesting she sign for an amount of $150 that was needed to hold an Open House for the EEO Office although she personally contributed over $200 of her own money to make the event a success; d. Complainant’s supervisor had a heated interaction with her in the presence of other staff which caused Complainant’s blood pressure to elevate and nose to bleed. When she emailed her supervisor to request permission to leave for the day, she did not receive a response; e. Complainant requested a meeting with the Director of Court Services and Offender Supervision Agency (CSOSA) to discuss her EEO concerns relative to her supervisor. The Director would not address her claims of a toxic and hostile work environment and instead assigned her concerns to ADR to facilitate; 2019004767 3 f. in reprisal for Complainant’s prior EEO complaint against her supervisor in 2015, she contends her supervisor disclosed to a colleague of hers, during a training event in San Francisco, California, that he had a falling out with Complainant when she went to the Director about him; g. in reprisal for Complainant’s prior activity, Complainant’s supervisor issued her an unsatisfactory mid-year review in which he lowered Complainant Processing performance element from a “2” to a “1” and informed her that he was placing her on a Plan of Action (POA) and/or Performance Improvement Plan (PIP). After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however, subsequently withdrew the hearing request. The Agency issued the instant final decision on May 9, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party 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). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on August 10, 2016, her supervisor lowered the rating on one of the critical elements (Complaints Processing) of her Performance Evaluation for the rating period July 1, 2015 to June 30, 2016, from a 3 to a 2. The EEO Director (Black, Panamanian, male) stated that during the relevant period, he was Complainant’s supervisor. He noted that in Complainant’s FY 2015, she received an overall rating of “Fully Meets Expectations” with no element rated below level 3. 2019004767 4 He explained that in regard to Complainant’s FY 2016, she was given a rating of 2 for the Critical Element of Complaint Processing due to her failure to submit quality and timely work products. The supervisor stated that on June 10, 2015, Complainant was assigned two investigations that were due to be submitted on August 10, 2015. However, Complainant was several months late in submitting the Report of Investigation draft and there were quality problems. The Court Services and Offender Supervision Agency (CSOSA) Director (African-American, Black female), also Complainant’s second level supervisor, stated that she met with the supervisor and provided feedback on Complainant’s rating. She also stated that she offered to change Complainant’s performance rating, but that Complainant declined the offer. Regarding claim 2, Complainant alleged that on August 10, 2016, her supervisor informed her that he was reassigning her from the responsibilities associated with affirmative employment and solely using her as the complaints processing manager, a function she had not been allowed to perform for at least four years. The supervisor explained that Complainant was assigned cases and duties in the complaints area from the beginning of his tenure as the EEO Director. He stated on August 10, 2016, the then- Complaints Manager left Agency employment. The Complaints Manager’s departure left the supervisor with only one EEO Specialist, who was Complainant, and another employee whose supervision he shared with the ADR Director. He explained that while he did not release Complainant from her duties associated with Affirmative Employment, he did inform her that until they were able to hire additional staff, she would be the Lead Specialist in Complaints Processing. The CSOSA Director stated at that time the reassignment of duties was a result of the EEO office being shorthanded and Complainant’s expertise was needed to support operations until a new employee was hired. The record for claims 1 and 2 support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Regarding claim 3, Complainant claimed that on unspecified dates, her supervisor subjected her to harassment/a hostile work environment by belittling, demoralizing and undermining her character and person, in the matters identified above in claim 3 a - g. In order to prove her hostile work environment 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 basis - in this case, her race, national origin, sex, color and/or prior EEO activity. 2019004767 5 Only if Complainant establishes both of those 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 Complainant’s allegation that the supervisor made insensitive comments, was dismissive of any new ideas that she suggested for improvement in the program, and closed his office door and did not speak or interact with her for the entire day, the supervisor denied all Complainant’s allegations. He asserted that he has an “open-door” policy and that his staff is aware they are free to knock the door and bring any questions to his attention. The supervisor also stated there was no past practice regarding program funding. He asserted that the Associate Director had cautioned him about allowing the special emphasis program managers from promoting programs before the Office of Finance had approved the funds for the program. The supervisor stated, however, that with regard to the incident referenced by Complainant, he felt that the Hispanic Program Manager’s notice of the upcoming event was generic enough to “pass muster” before financing was approved so he issued it. The supervisor noted that Complainant disagreed with his action, but she did not express her concerns to him personally. Instead, Complainant told the Hispanic Program Manager of her disapproval. Further, the supervisor stated that he gave Complainant $150 to cover the cost of food and drinks at the EEO, OHR and ADR Open House and asked her for a receipt. Complainant asserted that the supervisor had a heated interaction with her in the presence of other staff which caused her blood pressure to elevate and nose to bleed and when she asked him permission to leave for the day she did not receive a response. However, the supervisor stated he has no recollection of this alleged incident. The supervisor stated that in 2015, he attended the Excel conference in San Francisco, California and saw the former employee, but no discussion was held regarding a “falling out” with Complainant. Regarding Complainant’s claim that her supervisor denied her telework and she felt threated with leave restrictions, the supervisor stated that he does not recall denying her the ability to telework in 2016. The CSOSA Director also testified that she had no knowledge of this matter. Furthermore, the supervisor explained that Complainant’s performance level was deficient, but she was not placed on a POA or PIP. He further stated that he extended Complainant’s performance period to November 16, 2017, based on the fact that she was on sick leave for several months during the most recent performance period. According to the CSOSA Director, she declined to discuss Complainant’s complaints with her and instead directed her to work through the ADR office. 2019004767 6 Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, national origin, sex, color and/or prior EEO activity. Complainant’s testimony conflicted with that articulated by the responsible managers. Therefore, we conclude Complainant did not meet her burden because, at best, this evidence is equipoise. Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) (credibility determinations were unavailable after a withdrawal of a request for a hearing such that complainant could not show that opposing witnesses had made false statements); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that a coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). We note that, in withdrawing her request for a hearing before an EEOC AJ, Complainant declined the opportunity to develop the record through discovery and to cross examine witnesses. Tommy O. v. U.S. Postal Serv., EEOC Appeal No. 0120152090 (June 8, 2017). Ultimately, Complainant did not present sufficient supporting evidence of her claim that Agency management’s actions were based on discriminatory or retaliatory factors. 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 bases. 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 or 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). 2019004767 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. 2019004767 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 April 22, 2021 Date