[Redacted], Celine B., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Oct 6, 2021

Appeal No. 2021000129 (E.E.O.C. Oct. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celine B.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2021000129 Hearing Nos. 540-2019-00039X 540-2020-00078X Agency Nos. NPS-18-0235 NPS-18-0715 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 3, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether Complainant established that the Agency's proffered explanations for its actions were pretext to mask discrimination based on her sex, age, and protected EEO activity; and (2) whether Complainant established that she was subjected to a hostile work environment based on her protected classes, as alleged. 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. 2021000129 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Support Assistant at the Capulin Volcano National Monument in Capulin, New Mexico. On April 30, 2018, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her and subjected her to a hostile work environment based on reprisal for prior protected EEO activity2 when: 1. On September 5, 2017, she was required to work in unsafe conditions while her duty station building was being renovated, and she was assigned to a work area that endangered her health and caused her to become sick; 2. On or around September 9, 2017,3 she was denied a copy of the Safety Report; 3. On November 15, 2017, she was denied her FY17 performance appraisal, and assigned to a new supervisor; 4. On November 29, 2017, she was denied housing training; 5. On December 6, 2017, she was accused of engaging in destructive behavior that presented possible safety issues, and sent home to telework until January 8, 2018; 6. On January 8, 2018, she was denied a copy of the allegations filed against her as well as the results of the investigations; 7. Her authority as the housing manager was undermined; 8. On January 26, 2018, she was placed on a 3-Day Suspension without pay; and 9. Her supervisor revoked her annual and sick leave, and she was placed on Absence without Leave (AWOL) from June 29, 2018, through July 6, 2018. On February 16, 2019, Complainant filed a second EEO complaint, alleging that the Agency discriminated against her and subjected her to a hostile work environment based on sex (female, sexual orientation4), age (57), and reprisal for prior protected EEO activity when: 2 Complainant’s prior protected EEO activity pertained to her testimony in relation to her coworker’s EEO complaint. 3 Complainant said that she requested a copy of the Safety Report on January 30, 2018. 4 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an 2021000129 3 10. Since October 13, 2018, she has not been included in meetings; 11. She was denied training from October 29, 2018, through November 2, 2018, and December 3, 2018, through December 6, 2018; 12. She was denied her full year Employee Performance Appraisal Plan Review for FY18, and on February 9, 2019, she was given an Unsatisfactory Performance rating for FY18; 13. She was issued a decision letter dated October 15, 2018, upholding a Proposed 10- Day Suspension (dated July 20, 2018); and 14. On or around February 6, 7, and 8, 2019, she was harassed by the Management Analyst and another management official, including being falsely accused of disruptive behavior. Following the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case consolidated Complainant’s complaints, but also issued sua sponte a Notice of Intent to Issue a Decision without a Hearing on January 30, 2020. Over Complainant's objections, on June 10, 2020, the AJ issued a decision without a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. AJ’s Decision In addressing Complainant’s claims of disparate treatment, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not show were pretextual based on her protected classes. With respect to claim 3, the AJ noted that both Complainant’s previous Supervisor and Complainant got into a heated argument where abusive language was exchanged. The AJ observed that Employee Relations (ER) recommended that Complainant be assigned to a new supervisor who would also be responsible for providing Complainant with a new fair and impartial rating. In addressing claim 4, the AJ noted that Complainant had completed comprehensive Housing Management training in June 2016; the requested training was not mandatory; only part of the training was relevant; and the local office had a small training budget, among other things. The AJ additionally observed, regarding claim 5, that employees felt uncomfortable with Complainant’s loud humming and singing. So, noted the AJ, ER recommended placing Complainant on telework while the matter was investigated. With respect to claim 8, the AJ found that Complainant received the suspension for being argumentative with management on September 8, 2017. allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021000129 4 Specifically, Complainant said, “shut up” and called her supervisor a liar, among other things. The AJ also noted that Complainant had been accused of distracting renovation construction contractors. Regarding claim 9, the AJ noted that Complainant had a June 29, 2018, deadline to complete an annual credit card audit, and her leave was revoked after she did not complete the audit. With regard to claim 11, the AJ noted that management did not send Complainant to the October 2018 training because she did not need IT training that was for individuals at a higher-grade level. The AJ also observed that the December 2018 training was, in part, a training that Complainant had already attended. Moreover, Complainant had been on leave for six of the remaining 12 weeks of the year, so she needed to complete significant work. In addressing claim 12, the AJ observed that because Complainant had different supervisors, no one supervisor could evaluate Complainant for the full year. Additionally, the AJ noted that the Agency changed Complainant’s rating, from unsatisfactory to fully successful, because the supervisor who provided Complainant with the poor rating had not been a supervisor for 90 days. Regarding claim 13, the AJ found that Complainant refused to acknowledge the Management Analyst as her supervisor and deliberately did not follow her instructions. The AJ found, moreover, that Complainant did not establish that she was subjected to a hostile work environment regarding claims 1, 2, 6, 7, 10, and 14. The AJ stated that Complainant did not show that the Agency’s actions with respect to these claims were motivated by discriminatory or retaliatory animus. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, contends that the AJ erred in failing to afford her the opportunity to engage in discovery. Complainant maintains that the Agency denied her the benefits of her employment and attempted to disparage her work and character. Further, she argues that the Agency’s proffered legitimate, nondiscriminatory reasons are a mere pretext for discrimination. Specifically, regarding claim 1, Complainant asserts that the Agency engaged in an ongoing pattern of placing her in an unhealthy work situation and moving her to another unhealthy work environment when she complained. Contrastingly, asserts Complainant, other employees were removed from the unhealthy work environment. She believes that this disparate treatment by management was due to her testimony in a coworker’s EEO complaint. Complainant additionally asserts, regarding claims 2 and 6, that management should have provided her with a copy of the Safety Report so she could have properly responded to the Proposed Suspension. Complainant maintains that she only received a heavily redacted version of the Safety Report months after the Proposed Suspension was issued. As for claim 3, wherein the Agency stated she was transferred to a new supervisor due to an abusive conversation with her previous supervisor, Complainant asserts that it is unclear what was said during their conversation. In addressing claim 4, Complainant maintains that the Agency clearly had enough money in its budget to send her to this training, as she was the only individual who requested to attend the training. 2021000129 5 Complainant additionally contends, regarding claims 5 and 14, that she was penalized for working in a construction zone and the fact that she requested to be moved to a different workstation was not her fault. Further, she states that management was untruthful with regard to their allegation that she was a distraction, because of her humming, especially since there was a jackhammer pounding away down the hall due to the renovations going on within the facility. With respect to claim 7, Complainant explains that her job duties included monitoring individuals who are renting housing units from the Agency. When management rented out Agency facilities to individuals rent-free without addressing the matter with her, she appeared incompetent in the performance of her duties. In addressing claim 8, Complainant asserts that she was punished for voicing concerns about her work environment and improperly accused of distracting renovation contractors. As for claim 9, Complainant states that her pre-approved leave status was revoked while she was on leave and even revoked retroactively. Complainant believes that the AJ erred in finding no supportive evidence regarding her exclusion from meetings, claim 10, as the parties were not afforded the opportunity to engage in discovery. Pertaining to claim 11, Complainant contends that the AJ erred in relying solely on a statement from one management official, who made an unsupported allegation slandering her. She further asserts that other similarly situated employees were afforded such trainings while she was not. Moreover, regarding claim 12, Complainant asserts that management officials sought to tarnish her professional reputation by knowingly have her unqualified Supervisor complete her annual performance evaluation. While her appraisal was amended to a “fully successful” evaluation, Complainant argues the initial “unsuccessful” performance evaluation is still on her record and has not been removed. Furthermore, Complainant believes the Agency mischaracterized her alleged performance issues as misconduct when issuing the 10-Day Suspension. The Agency filed a brief in opposition to Complainant’s appeal. It requests that we affirm its final order, adopting the AJ’s decision finding no discrimination and harassment. ANALYSIS AND FINDINGS Summary Judgment We first must 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. 2021000129 6 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. Further, 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 note that, on appeal, Complainant contends that the AJ did not afford her the opportunity to conduct discovery, and therefore the record is not adequately developed in this case. Complainant argues there are credibility issues surrounding many of the witnesses in the ROI, which can only be assessed through cross-examination. Additionally, Complainant asserts that the record is devoid of information regarding the treatment of other employees who engaged in similar conduct or those that also did not receive performance evaluations or training. Upon review, we find that the record is adequately developed. Complainant has not shown that her discovery request would have resulted in a different legal outcome. In so finding, as discussed below, we note that the Agency’s legitimate, nondiscriminatory reasons were corroborated by multiple management officials, among other evidence in the record. Complainant also does not specifically describe how the missing information would show discriminatory or retaliatory animus on the part of the management officials in this case. Moreover, we note that the AJ’s Notice of Intent to Issue a Decision without a Hearing instructed Complainant: if not already contained in the report of investigation, [Complainant] should also include any relevant documentary evidence or witness statements, interrogatory answers, admissions, or other supporting materials and provide a clear and specific statement of their relevance. Having reviewed the record, we find that the AJ correctly determined that there are no genuine issues of material fact or credibility requiring a hearing. Therefore, the AJ's issuance of a decision without a hearing was appropriate, as discussed further below. Disparate Treatment (Claims 3, 4, 5, 8, 9, 11, 12, and 13) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. 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). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2021000129 7 In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination based on sex, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions regarding claims 3, 4, 5, 8, 9, 11, 12, and 13. Specifically, regarding claim 3, the Superintendent explained that Complainant and her previous supervisor engaged in a heated argument where some abusive words were exchanged between the two of them. Report of Investigation, Agency No. NPS-18-0235 (ROI 1), at 195. The Superintendent averred that it was determined that Complainant’s previous supervisor would not be able to render a fair and impartial evaluation of Complainant’s performance. Consequently, it was recommended that Complainant be assigned to a new supervisor, who could not issue Complainant’s FY17 performance rating until having overseen Complainant for 90 days. Id. The Superintendent also averred, with respect to claim 4, that Complainant was denied the training because she had already attended the same training the previous year. Id. at 198. With regard to claim 5, the Management Analyst explained that she received several emails from employees complaining that Complainant was invading their personal space and humming very loudly. Id. at 269. In addressing claim 8, the Superintendent explained that Complainant was issued the Suspension for engaging in a verbal altercation with her supervisor and unsafe and distracting behavior with one of the renovation construction workers. Id. at 207. Additionally, the Management Analyst attested, regarding claim 9, that Complainant was marked with AWOL because she did not complete the yearly credit card audit as instructed. Id. at 275- 278. The Management Analyst recalled that Complainant was denied the trainings at issue, claim 10, because they were not related to Complainant’s position, as well as concerns over the work that needed to be accomplished in light of Complainant’s planned annual leave. Report of Investigation, NPS-18-0715 (ROI 2) at 139. As for claim 12, a second Superintendent (Superintendent 2) averred that the regional office had to keep changing supervisors for Complainant as a result of her complaints against each of them. Id. at 266-267. Superintendent 2 also justified the unsatisfactory rating by noting, for example, Complainant’s taking off on Mondays and Fridays, not responding to emails, and hanging the phone up on her supervisor. Id. The Visiting Services Manager attested, with respect to claim 13, that Complainant was issued the Suspension for failing to complete an audit on a Friday and instead calling in sick. When she was asked to come to work on Monday to complete it, she failed to do so. Id. at 172. These explanations meet the Agency's very light burden of production under Burdine. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 256. Upon review, we find that Complainant has not established that the Agency’s reasons were pretextual based on her protected classes or that the Agency was motivated by discriminatory or retaliatory animus. We note that the Agency’s reasons for its actions were corroborated by multiple management officials, and we find that Complainant has not shown that these management officials’ reasons were unworthy of belief. We note, for example, that the Chief of Occupational Safety attested that a construction worker reported that Complainant would stick her head through a plastic barrier and stick her tongue out at him, among other nuisances, while he was installing a 1,500-pound ceiling beam. ROI 1, at 367. In addition, we note that three management officials attested that Complainant would hum very loudly in a disruptive manner and she would only hum louder when asked to stop. 2021000129 8 They all maintained that Complainant acted in an antagonistic manner toward employees in the office. Complainant has not shown that Management’s examples of her reported unprofessional and disruptive behavior are unworthy of belief. We additionally note that most, if not all, the management officials in this case denied knowledge of Complainant’s prior EEO activity, sexual orientation, and age. We find that Complainant has not established that she was subjected to discrimination regarding these claims. Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded by the Commission's finding that she failed to establish that any of the actions taken by the Agency in claims 3, 4, 5, 8, 9, 11, 12, and 13 were motivated by discriminatory or retaliatory animus See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Moreover, with respect to claims 1, 2, 6, 7, 10 and 14, we find that Complainant has not established that management’s actions were sufficiently severe or pervasive to rise to the level of a hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). We find that Complainant has not established that she was subjected to discrimination or harassment, as alleged. In addition, Complainant has not shown any nexus between the Agency’s actions and her protected classes. The Agency’s decision fully implementing the AJ’s finding of no discrimination was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order 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 2021000129 9 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). 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. 2021000129 10 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 October 6, 2021 Date