U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beverly C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021000355 Hearing No. 570-2019-01290X Agency No. HS-FEMA-02411-2018 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 26, 2020 final order concerning her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Management & Program Analyst, GS-11, at its Mission Support Executive Agency in Washington, D.C. On August 11, 2018, Complainant filed her complaint alleging a hostile work environment based on race (Asian-American), national origin (Chinese), sex (female), disability (temporary disability due to injury), and in reprisal for prior 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. 2021000355 2 1. On October 23, 2017, management gave her a “Meeting Expectations” performance rating during her performance review. 2. On December 29, 2017, management informed her that her two-year CORE (Cadre of On-Call Response/Recovery Employee) appointment would not be reinstated due to “reorganization.” 3. On multiple dates, the Agency subjected her to various acts of harassment, such as: a. On May 10, 2017, she was moved to the OCCHCO (Office of Chief Component Human Capital Officer) Front Office as the Special Assistant to the Deputy, without consultation or notification; b. From May 15, 2017, onward, her request for feedback or guidance on her Special Assistant to the Deputy tasks was denied; c. Around July 2017, and September 2017, management stated “you can handle it, you’re Asian,” to her when she articulated that she felt overwhelmed by the workload;” d. Around July 2017, and August 2017, management did not provide her with a Performance Plan; e. Around July 2017, management requested that she postpone her professional development training at the Graduate School until after October; f. From September 2017, to present, management’s attitude toward her deteriorated; g. On November 27, 2017, management reversed her deployment status and she was deployed despite being initially granted PANA (Pre-Approved Non-Availability) from September 24, 2017, to December 4, 2017; h. Around December 2017, management allowed her to be bullied and harassed; i. On December 27, 2017, management detailed her to the Performance Management team; j. On January 12, 2018, management did not consider her self-assessment or deployment evaluation during her performance appraisal; k. On February 26, 2018, management articulated that the reason her CORE appointment was not reinstated was because “nobody wants [her] here;” l. On an unknown date, management tampered with her performance review and removed comments regarding her rebuttal. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Agency articulated legitimate reasons for its actions. Furthermore, regarding her harassment claim, the AJ found that Complainant did not show that any of the actions, considering all the events, were motivated by discrimination as alleged. 2021000355 3 Specifically, Complainant was hired by the Agency in March 2016, as a GS-9 Program Analyst under a two-year renewable CORE appointment. She then received her grade increase to GS-11 in April 2017. In May 2017, Complainant accepted a detail to OCCHCO office. In that office, Complainant was overwhelmed with her work assignments due to short staff. While Complainant was deployed to a Puerto Rico disaster operation in December 2017, Complainant and other staff members complained to management that a Federal Coordinating Officer, who was assigned to the Puerto Rico disaster operation, created a hostile work environment. Upon receiving these complaints, management immediately transferred the Officer out of the office in December 2017. Regarding her 2017 rating, Complainant ultimately received the rating of “Exceed Expectations” after her appeal to management of her initial “Achieved Expectations” rating. Complainant’s CORE appointment was renewed on February 4, 2018, and she began her new two-year CORE appointment in the Executive Office of Agency’s Mission Support Division. On February 3, 2019, Complainant received her grade increase to GS-12 as a Strategic Communications Lead in the Individual Assistance under Recovery Directorate in Washington D.C. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2021000355 4 Regarding the incident in 3(c), the record indicates that the remark was made by two people not in Complainant’s chain of command. The two people who purportedly made the remark stated that if they did make the remark, it would have been made in a positive light in order to bolster Complainant’s mood when Complainant felt overworked. Furthermore, we note that Complainant herself stated that the remark was made in a “jocular” manner. Even if we assume that the remark was made in a discriminatory manner, we find this one time incident is insufficient to constitute a discriminatory, hostile work environment. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 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. 2021000355 5 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. 2021000355 6 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 February 17, 2021 Date
