[Redacted], Carletta W., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Jul 20, 2021

Appeal No. 2020000149 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carletta W.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2020000149 Hearing No. 570-2019-00248X Agency No. DOI-OS-17-0498 DECISION On October 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 12, 2019 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. ISSUES PRESENTED The issues presented are whether the Administrative Judge (AJ) properly issued summary judgment as a matter of law; and whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination and retaliation based on her race, age, and in reprisal for her prior protected EEO activity. 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. 2020000149 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Specialist at the Agency’s Office of the Secretary, Office of Civil Rights (OCR) facility in Washington, D.C. On October 25, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases2 of race (African-American), age (63), and reprisal for prior protected EEO activity (participation in colleague’s EEO complaint) when: 1. on July 11, 2017, the Director (African-American, male, over 40) of the Office of Civil Rights (OCR), sent Complainant a new Position Description (PD) in which he removed her supervisory authority to run the day-to-day operations of the OCR and changed her official title from Deputy Director of the OCR to EEO Specialist. 2. Complainant also alleged that she was subjected to a hostile work environment on the same bases as stated above when: a. on July 30, 2015, the Director informed Complainant that he received a fact- finding report stating that she engaged in misconduct at a different federal agency, though he would not provide details of the report; b. on or around July 30, 2015, the Director informed Complainant that, based on the fact-finding report, she would be reassigned to a different office but did not provide details about her reassignment; c. from September 2015, through March 1, 2017, Complainant was detailed to the Human Resources Office, Health and Human Services (HHS), and not permitted to enter the Agency’s building where she was previously stationed; d. in October 2016, the Director’s Administrative Assistant (AA) informed her that the Director stated that Complainant had stolen documents to cause the late submission of final agency decisions (FADs); e. in October 2016, the AA informed Complainant that the Director stated that Complainant had applied for the director position that the Director currently held and that she would "do anything to bring him down"; f. through 2016, Complainant was not informed as to where she would eventually be permanently reassigned; 2 We note that the record contains various statements from Complainant asserting that the Agency intentionally omitted sex as a basis. However, in review of the informal and formal complaints, Complainant had not raised sex as a basis. 2020000149 3 g. on July 11, 2017, the Director sent Complainant a new Position Description (PD) in which he removed her supervisory authority to run the day-to-day operations of the OCR and changed her official title from Deputy Director of the OCR to EEO Specialist;3 h. in 2016, Complainant’s performance rating of Exceptional was not placed in her official personnel file and, thus, she was not provided with the attendant rewards of the Exceptional rating; and, i. in 2017, agency officials did not incorporate her Level 5 "Exceptional" performance rating in her FY 2017 performance rating. On February 1, 2018, the Agency authorized a third-party office to conduct an investigation into the above claims. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On July 1, 2019, the AJ issued a Notice of Proposed Summary Judgment, and invited both parties to respond. Both parties timely responded. On September 9, 2019, the AJ issued a summary judgment decision in favor of the Agency. In reaching his determination, the AJ found that the Agency had provided legitimate, nondiscriminatory reasons for its actions and that Complainant had failed to demonstrate that such reasons were pretext for discrimination. The AJ also noted that the Agency’s workplace was chaotic and involved a variety of personality and work-place conflicts, but that ultimately there was no evidence of a hostile work environment. On April 16, 2018, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the AJ erred in issuing summary judgment in favor of the Agency. Complainant asserts that the AJ based his decision on an inadequate investigation and record. Complainant asserts that a hearing is essential as the Report of Investigation (ROI) lacks essential information and that genuine issues of material facts are in dispute. Complainant notes that while she responded to the AJ’s Notice of Proposed Summary Judgment, it did not appear that the AJ took her arguments into consideration prior to issuing summary judgment in favor of the Agency. In her statement, Complainant provides examples of why summary judgment was inappropriate. For example, she noted that the Administrative Assistant was never interviewed, which barred her from the opportunity to respond to any statements she may have provided. Complainant noted other individuals that were also not interviewed and why that was harmful towards the overall investigation. Complainant requests that the Commission remand the matter for a hearing. 3 We note that Claim 1 and 2(g) are identical; this is how the agency listed the claims. 2020000149 4 The Agency did not provide an appellate brief. 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 C.F.R. Part 1614 (EEO MD-110), at Chapter 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”). ANALYSIS AND FINDINGS Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments in her opposition to the motion for summary judgment and on appeal, we find that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. 2020000149 5 Complaint Processing We note that Complainant raised concerns with the processing of her complaint on appeal. Specifically, Complainant asserts that the investigation was inadequate because the EEO Investigator did not interview several potential witnesses. For example, Complainant asserts that the EEO Investigator failed to obtain a statement from the Administrative Assistant. The record demonstrated that the EEO Investigator attempted to contact the Administrative Assistant four different times through regular mail and email. The Administrative Assistant failed to respond to each request. We also note that in her response to the AJ’s Notice of Intent to issue summary judgment, Complainant asserted that it was inappropriate for her office to process her formal EEO complaint. Complainant asserts that the OCR Manager asserted that EEO MD-110 allowed for the office to investigate the matter, but Complainant asserts that it does not. Complainant asserts that having her own office investigate the matter was a clear conflict of interest and biased the investigation. Complainant cited to Chapter 1, Section IV (B)(1), and asserted that even though a “third party” was called upon to investigate the matter, it was a contractor that the responsible management officials had influence and control over, making it so that the third party could not be impartial. EEO MD-110 . Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. The EEO MD-110 does not specifically bar the OCR from handling Complainant’s EEO complaint but provides examples of what to do when potential conflicts of interest might arise. Such examples were having the named responsible management official recuse him or herself from the process and having an impartial third party investigate. Here, despite Complainant’s appellate statements, the Commission determines that the investigation was properly and adequately conducted. In this matter, the initial processing of Complainant’s complaint was conducted by the Agency’s Office of Civil Rights (OCR). Specifically, the informal counseling, the formal complaint, and the acceptance of the claims. Complainant argued that these actions were an inherent conflict of interest and biased the process. Based on our review, we do not find any impropriety in the OCR conducting the initial steps of the EEO complaint process. There is no evidence that Complainant was harmed by OCR initially participating in the EEO process. Moreover, the investigation was later conducted by an impartial, third party. Complainant argued that since the third party was contracted by the Agency it was impossible for it to be neutral. We do not agree with this blanket statement. There was no evidence that this third party was unduly influenced by the Agency or the named responsible management official. Furthermore, an impartial AJ later had the opportunity to review the entirety of the matter and did not find any conflicts of interest. The AJ’s determination that there were no discriminatory or retaliatory actions were later adopted by the Agency. 2020000149 6 Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. Dep’t of Cmty. 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. St. Mary's Honor Ctr. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Upon our review of the voluminous evidentiary record which consists of numerous affidavits and exhibits, and having fully considered and analyzed the record before us, which includes the Agency’s Motion for Summary Judgment, which recites and addresses each claim and identifies the evidentiary support on which it relied for its alleged actions, and Complainant’s rebuttal, we conclude that the preponderant evidence does not establish discriminatory or retaliatory animus.4 Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant established a prima facie case of discrimination and retaliation based on her protected classes, we also find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here, claims 1 and 2(g), which are the same, involved Complainant’s allegation that the Director discriminatorily removed her supervisory authority and then changed her position description. However, the record does not support Complainant’s contentions. The record demonstrated that the Agency engaged in restructuring efforts going back to 2014, and that the Director was not responsible for changing Complainant’s position. Furthermore, the change in position, which was approved by the Office of Personnel Management, did not affect Complainant’s pay or grade level, and impacted five of Complainant’s colleagues as well. 4 The record in this case is exhaustive and details numerous incidents in support of the claim. We will not individually address each incident of alleged discrimination. Although the claims will not be individually addressed, all matters which Complainant raised have been considered and viewed in the context of all bases and in the context of disparate treatment and a hostile work environment. 2020000149 7 Regarding claims 2(a, b, c, d, e, and f), these claims centered around Complainant’s allegations that the Director was motivated by discriminatory and retaliatory animus when he detailed Complainant to another agency. The record demonstrated that, in September 2015, an internal fact-finding investigation revealed that Complainant deliberately engaged in misconduct and contributed to a toxic work environment. The detail was initiated due to the results of the internal investigation. A later, separate Office of Inspector General (OIG) investigation substantiated the earlier internal investigation and supported the detail. The OIG investigation noted that the detail was utilized instead of issuing Complainant progressive discipline. Regarding claims 2(h and i), Complainant asserted that she was never provided with the benefits of her 2016 Exceptional performance rating and that her subsequent 2017 evaluation failed to incorporate her prior Exceptional rating. Here, Complainant was on detail to another agency during the Fiscal Year (FY) 2016. Therefore, Complainant was not eligible for any Agency- specific performance award in FY 2016. In terms of the Director failing to incorporate the Exceptional rating, the record demonstrated that the rating was received while Complainant was working at a different agency, under a different supervisor and performing different tasks. While she was considered Exceptional in that detail, the Director was not obligated to carry the Exceptional rating over into a new fiscal year. In this matter, the Director provided Complainant with the rating he believed reflected her FY2017 performance while at the Agency. As a result, Complainant received a Superior rating, which is just under the Exceptional rating. Complainant’s rating was the highest rating anyone received at the GS-15 level for FY 2017 in her department. There is no evidence that the Director was motivated by discriminatory or retaliatory animus when he provided Complainant with a FY 2017 Superior rating. We note that as the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions such as reassignment, position description updates, and evaluations, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). The actions alleged to be discriminatory were routine managerial actions to which Complainant failed to demonstrate were conducted with discriminatory or retaliatory animus. Here, as detailed by the record and in the AJ’s decision, the record supports the AJ’s determination that the Agency’s proffered reasons were legitimate and non-discriminatory. Complainant did not provide persuasive arguments, below or on appeal, that the Agency’s actions were pretext for discrimination. 2020000149 8 Hostile Work Environment Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in 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 (Mar. 8, 1994). To establish this claim, a 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 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. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). In her harassment claim, in addition to the events addressed above, Complainant generally alleged that the Director subjected her to a hostile work environment by undermining her work and spreading lies that Complainant would do “anything to bring him down”, as asserted in claim 2(e). To prove her harassment claim, Complainant had to 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 also had to prove that the conduct was taken because of a protected basis - in this case, her race, age and EEO activity. In this matter, Complainant only generally asserted that the incident alleged in claim 6 was connected to her protected classes or EEO activity. Complainant did not provide any evidence to demonstrate a connection between the alleged incident and her protected bases or EEO activity. Accordingly, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2020000149 9 Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the action taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final 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. 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). 2020000149 10 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. 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 July 20, 2021 Date