[Redacted], Bell G.,1 Complainant,v.Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Feb 25, 2022

Appeal No. 2021002527 (E.E.O.C. Feb. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Bell G.,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 2021002527 Agency No. 2018-0050 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 February 22, 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. 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 Senior Trial Attorney at the Agency’s Atlanta District Office in Atlanta, Georgia. Complainant alleged that, since February 2018, her first-line supervisor, a Supervisory Trial Attorney (STA) (African American, female) and second-line supervisor, the Regional Attorney 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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission’s adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to the respondent party in this action. The Chair has abstained from participation in this decision. 2021002527 2 (RA) (African American, female), over-scrutinized Complainant’s work and sent nasty, dismissive, and harassing emails. For example, Complainant averred that on February 26, 2018, STA instructed her to file a motion to extend for one case. Complainant filed another motion to extend after speaking with RA about a different case. However, Complainant did not have STA review the motions prior to filing, claiming that this was not a willful oversight but an adjustment to new protocol.3 Report of Investigation (ROI) at 140. On May 9, 2018, STA gave Complainant a Notice of Performance Improvement Plan (PIP) due to unacceptable performance in two critical elements of Litigation and Customer Service, and Communication and Operational Efficiency. STA noted Complainant’s specific performance deficiencies, such as, more than 80% of the time, Complainant’s litigation assignments were not completed or presented within established deadlines, with no legitimate reason for her failure to meet the deadlines. STA stated that the PIP would last for 90 days and if Complainant’s performance improved to a fully successful level in both elements, then no further action would be taken. ROI at 114-19. On June 21, 2018, STA gave Complainant a Letter of Reprimand (LOR) for failure to abide by protocols, procedures, and directives put in place by management. STA provided 11 examples of Complainant’s misconduct, including filing two pleadings without STA’s prior review, which was against protocol. STA noted that in one case, Complainant failed to even discuss with her the need to file a motion. STA explained that Complainant’s actions were disruptive to the work environment and that she and RA had to spend an exorbitant amount of time addressing Complainant’s unwillingness to follow the rules. STA stated that the LOR was intended to deter Complainant from future misconduct and improve efficiency of service. ROI at 133-35. On August 10, 2018, STA informed Complainant that the PIP had concluded, and she had not achieved a fully successful in the two critical performance elements. ROI at 205. On August 24, 2018, STA presented Complainant with a Notice of Proposed Removal for unacceptable performance. STA indicated that Complainant failed to achieve the acceptable level of performance by the conclusion of her 90-day PIP. ROI at 105-11. On November 1, 2018, RA issued a Notice of Final Decision to sustain Complainant’s removal. RA averred that she considered Complainant’s written and oral responses, and determined that the proposed action was supported by substantial evidence. ROI at 226-38. On September 28, 2018, Complainant filed a formal EEO complaint alleging that the Agency had subjected her to discrimination and harassment on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity, when: 1. since February 2018, RA and STA over-scrutinized Complainant’s work and sent nasty, dismissive, and harassing emails; 3 Complainant did not complete an affidavit for her complaint. Her statements are taken from the EEO Counselor’s report. 2021002527 3 2. on May 9, 2018, RA and STA placed Complainant on a PIP; 3. on June 21, 2018, RA and STA issued Complainant a LOR; and 4. on August 24, 2018, RA and STA issued Complainant a Notice of Proposed Removal.4 The Agency accepted the complaint for investigation on July 31, 2019. ROI at 153-55. On August 16, 2019, Complainant requested a hearing before an Administrative Judge (AJ) and simultaneously filed a Motion for Default Judgment. ROI at 33-5, 39-48. On November 27, 2019, the Agency provided Complainant with a copy of the ROI. The AJ denied Complainant’s Motion for a Default Judgment, finding that the record did not support such an extreme measure as a default judgment. Complainant subsequently withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed that Complainant met her burden of showing a prima facie case of disparate treatment based on race, sex, and in reprisal for protected EEO activity, for the issuance of the PIP, the LOR, and the proposed removal. The Agency then found that management officials established legitimate, nondiscriminatory reasons for the actions and that Complainant had not established pretext. The Agency also determined that Complainant’s harassment claim was without merit because Complainant failed to show that the alleged harassment was based on her race, sex, or reprisal for engaging in prior protected EEO activity. Furthermore, the Agency held that there was nothing in the record to suggest that any of the its actions were taken for discriminatory reasons or motivated by discriminatory animus based on Complainant’s protected bases. The Agency concluded that Complainant failed to prove that she was subjected to discrimination or harassment as alleged. Complainant filed the instant appeal but did not submit a statement in support. The Agency opposed Complainant’s appeal and requested that the Commission affirm its final decision. ANALYSIS AND FINDINGS 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 4 In the final decision, the Agency noted that Complainant subsequently was removed, and that she filed a union grievance but did not amend her EEO complaint to include the removal. As such, Complainant’s removal action was not part of the instant complaint. The record shows that on May 2, 2019, Complainant’s representative filed a Step 2 Grievance regarding Complainant’s removal and invoked binding arbitration pursuant to the collective bargaining agreement. ROI at 242-43. The Agency responded that Complainant’s grievance was non- grievable and non-arbitrable due to its untimeliness. ROI at 249-50. 2021002527 4 C.F.R. Part 1614, 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”). Disparate Treatment (Claims 2-4) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affs., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and in reprisal for prior protected EEO activity, the Commission finds that the Agency proffered legitimate, nondiscriminatory reasons for claims 2-4. For claims 2 and 4, STA attested that she placed Complainant on a PIP for her failure to successfully meet the performance standards of her position and issued the proposed removal due to Complainant’s failure to successfully complete the PIP. ROI at 164-65. RA asserted that, in addition to the performance deficiencies listed in the PIP and proposed removal, Complainant did not exercise prosecutorial initiative in her litigation or engage with her investigative team. RA noted that she received had numerous complaints from Complainant’s investigators. ROI at 172. Regarding claim 3, STA averred that she issued the LOR for Complainant’s failure to successfully meet the performance standards of her position and for misconduct. ROI at 164. The Commission finds that Complainant has not shown that the proffered reasons were pretexts 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, 2021002527 5 2008). Here, Complainant did not complete an affidavit and provided no arguments or evidence showing that the proffered reasons were unworthy of belief. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, the Commission finds that Complainant did not establish that the Agency discriminated against her based on her race, sex, or in reprisal for prior protected EEO activity; when the Agency placed her on a PIP, issued her a LOR, and proposed removal. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation at II.B. Retaliatory harassing conduct is actionable if it is sufficiently material to deter protected activity, even if it is insufficiently severe or pervasive to create a hostile work environment. Id. at II.B.3. For purposes of analysis, as above, the Commission assumes that Complainant belongs to a statutorily protected class based on her race, sex, and protected EEO activity, and that she was subjected to unwelcome conduct for claim 1. However, Complainant did not provide any supporting evidence to prove that the complained of conduct was due to her race, sex, or in reprisal for her prior protected EEO activity. Further, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow 2021002527 6 abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, the Commission does not find such common workplace occurrences as addressing performance deficiencies sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, Complainant provides no evidence that the incidents were abusive or offensive, or taken in order to harass Complainant based on her sex or race. Nor has Complainant shown that the alleged actions in claim 1 would reasonably likely deter a reasonable employee from engaging in protected activity. Accordingly, the Commission finds that Complainant did not establish that the Agency subjected her to harassment based on race, sex, or in reprisal for prior protected EEO activity for claim 1. Regarding claims 2-4, as discussed above, the Commission found that Complainant did not establish a case of discrimination on any of her alleged bases for claims 2-4. Further, the Commission concludes that a claim of harassment is precluded based on the Commission’s finding that Complainant did not establish that any of these actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As such, the Commission finds that Complainant did not show that the Agency subjected her to harassment based on race, sex, or in reprisal for prior protected EEO activity, for claims 2-4. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency’s final decision finding that Complainant did not establish that she was subjected to discrimination or harassment based on her race or sex, or in reprisal for prior protected EEO activity. 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 2021002527 7 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. 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 2021002527 8 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: /s/ Shelley E. Kahn ______________________________ Shelley E. Kahn’s signature Shelley E. Kahn Acting Executive Officer Executive Secretariat February 25, 2022 __________________ Date