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

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2021002166 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Casandra N.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021002166 Hearing No. 570-2020-00958X Agency No. DOI-OS-19-0786 DECISION On February 23, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 22, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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 employment with the Agency in 2015. The period at issue began after July 2018, when Complainant started working as Administrative Assistant, Grade GS-9, for the Immediate Office of the Secretary at the Agency’s headquarters in Washington, District of Columbia. Within the Immediate Office of the Secretary, Complainant’s direct supervisor was the Supervisory Staff Assistant, Grade GS-15. Both Complainant and the Supervisory Staff Assistant identified as African American females. On October 10, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African American), color (Black), sex (female) and in reprisal for prior EEO-protected 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 2021002166 1. Since July 1, 2018, Complainant’s supervisor, the Supervisory Staff Assistant, consistently chastised Complainant and made snide remarks regarding her appearance, attire and the way she walks. 2. On August 19, 2019 her supervisor, the Supervisory Staff Assistant, implied Complainant lied on her resume and directed Complainant not to leave personal reading materials on her desk. 3. On August 20, 2019, the Supervisory Staff Assistant directed her to send email notifications when she arrived to and departed from work. 4. On August 28, 2019, Complainant became aware that her supervisor, the Supervisory Staff Assistant, requested the Office of Administrative Operations revoke her parking privileges. 5. On August 30, 2019 and September 6, 2019, the Supervisory Staff Assistant threatened to discipline Complainant for not adhering to time and attendance issues regarding leave, leave slips, and email directives. 6. On September 4, 2019, the Supervisory Staff Assistant denied having a telephone conversation with her, wherein she gave her instructions on how to change an employee’s already approved travel. 7. On September 5 and September 6, 2019, the Supervisory Staff Assistant informed her that “she was incapable of doing her job,” attacked her character, and belittled her and hung up on her. 8. On October 1, 2019, after being reassigned to another office, the Supervisory Staff Assistant questioned her in an accusatory manner about whether she had taken a chair from her old office. 9. On October 28, 2019, the Supervisory Staff Assistant retaliated against her for filing the instant EEO complaint by issuing her a “Minimally Successful” performance rating for fiscal year 2019. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely 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. 3 2021002166 The Agency issued its final order adopting the AJ’s finding o no discrimination. The instant appeal followed. On appeal, and through counsel, Complainant has restated that her supervisor, the Supervisory Staff Assistant, discriminated against her because she was younger single mother. FINDINGS AND ANALYSIS 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. 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 . . .”); EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VI.B. (Aug. 5, 2015) (providing that an AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. Id. at Ch. 9 § VI.A. (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”). Id. As an initial matter we note that parental status and marital status are not protected bases under the Commission’s regulations. Similarly, the Age Discrimination in Employment Act protections are limited to individuals who are over age 40. In other words, even if Complainant proved that her supervisor had treated her less favorably because she was a single mother in her 30s, such a claim cannot be remedied through the administrative EEO complaint process. 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the AJ 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. See 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. 4 2021002166 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant expressed displeasure with the conduct of the EEO process and its outcome but failed to sufficiently explain any material facts in dispute that require resolution through a hearing. Complainant’s appellate submissions did not present material evidence that dispute the factual record. Complainant did not evidence that similarly situated comparators had been treated more favorably. Based, therefore, on the articulation of her claims, we analyzed them in the context of harassment or a hostile work environment. Under the anti-discrimination statutes, EEOC cannot enforce a general civility to protect against “ordinary tribulations” in a workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). EEO laws guard against discriminatory harassment that alters the work environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithets or abusive conduct that fosters an illicitly hostile work environment. Complainant v. Dep't of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). EEOC has consistently held that personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level unlawful harassment. Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012). As discussed, hereafter, we find that the alleged incidents were more likely the result of routine supervision, personality conflicts, general workplace disputes, or common employee tribulations. Regarding Claim 1, witnesses agreed that Complainant had worn attire that co-workers considered inappropriately tight-fitting. The Supervisory Staff Assistant particularly found that Complainant’s wearing ripped jeans and a t-shirt with the word “Juicy” was excessively casual for their professional environment. The record revealed that Complainant was expected to be the initial contact representative for the Immediate Office of the Secretary. While Complainant claimed that there was an absence of an official written dress code, we note that Complainant was given the opportunity to return home and change her attire without being disciplined or officially counselled. Furthermore, Complainant received encouragement for having conformed her style to the office norm. Regarding Claim 2, we find nothing inappropriate about the Supervisory Staff Assistant directing Complainant refrain from removing her personal reading materials from a shared, common work area. 5 2021002166 Regarding Claim 4, Complainant had her parking privileges revoked after losing three parking passes within the period of a year. Witnesses stated that parking was generally problematic and that Complainant’s losing multiple parking passes in such a short time raised legitimate security concerns. Regarding Claim 9, involving Complainant’s performance appraisal for 2019, the Supervisory Staff Assistant corrected inaccuracies that Complainant pointed-out when she rebutted the “Minimally Successful” rating. As a result, the Supervisory Staff Assistant upgraded Complainant’s performance rating to “Fully Successful.” The overall record does not support Complainant’s position that the initial rating was discriminatory or retaliatory, or that her performance should have been rated more favorably. Regarding the remaining Claims 3, 5, 6, 7 and 8, evidence of record shows that the Supervisory Staff Assistant was arguably harsh in supervising Complainant. However, witness testimony indicated that, among other things, the Supervisory Staff Assistant was very strict about time and attendance. Even so, we find that the Supervisory Staff Assistant’s conduct that Complainant has described amounts to a series of petty slights that are typical of a workplace personality conflict. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that Supervisory Staff Assistant was motivated by discriminatory or retaliatory animus. In sum we conclude, as did the AJ, that even when considered together and presumed true, the events that Complainant alleged to be discriminatory were neither severe nor pervasive enough to constitute harassment in violation of Title VII. Moreover, Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, we AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 6 2021002166 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). 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). 7 2021002166 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 March 8, 2022 Date