U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlotte O.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency. Appeal No. 2020001601 Agency No. NCN-19-ARC-00061 DECISION On January 1, 2020, Complainant 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 December 5, 2019 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 Computer Engineer, GS-0854-13, at the Agency’s Security Operations Center at the Ames Research Center facility in Mountain View, California. On April 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American) and sex (female) when: 1. From February 7, 2018 to October 7, 2018, management belittled and intimidated Complainant, yelled at her during team meetings, made sarcastic comments, 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. 2020001601 2 denied March and August 2018 training requests, and engaged in dismissive and accosting behavior; 2. On October 31, 2018, her first level supervisor made inappropriate comments during a Security Operations Center (SOC) civil servant/government meeting while wearing a “Riddler” costume, stating that he “would have worn an Indian costume, but doesn't have the bloodline for that.”; 3. On November 8, 2018, Complainant's first level supervisor did not assign her as lead for the Incident Management System (IMS) Q2 Federal Incident Notification Guidelines (FING) enhancement project, although Complainant previously managed and successfully implemented the IMS Ql FING project requirements; 4. On November 28, 2018, Complainant's second level supervisor stated he would need to review her Position Description and discuss with management her request for promotion to a GS-14 position and, on December 12, 2018, stated that Complainant's position did not have promotion potential; 5. On November 28, 2018, and multiple occasions, Complainant informed her second level supervisor of the harassment and hostility by her first level supervisor, and the matter was not addressed; 6. On November 28, 2018, Complainant's first level supervisor provided to her second level supervisor disparaging performance feedback related to her mid-term review; 7. On December 4, 2018, Complainant's questions were dismissed during an IMS Transition meeting; 8. On December 12, 2018, Complainant's second level supervisor stated that Complainant's new role was not included in the future vision of the organization, gave Complainant reassignment options, and recommended that she explore employment elsewhere; 9. On December 12, 2018, Complainant's first level supervisor assigned her a low- level role as Records Custodian for Code IQ; 10. On December 13, 2018, Complainant's first level supervisor excluded her from a list of individuals with authority to review sensitive documents; 11. On December 13, 2018, Complainant's first level supervisor continually undermined and excluded African-Americans from Agency level work; 12. On December 20, 2018, at Complainant's mid-term performance review, her second level supervisor took notes that she felt would be used to sabotage her; and 13. In January and February 2019, Complainant's first level supervisor questioned her use of telework and asked her to submit a form for approval of telework, even though she had a telework agreement.2 The record reveals that Complainant was supervised by the Acting Deputy Director (S2) until her immediate supervisor, the Division Chief (S1) arrived. Regarding Claim (1), Complainant alleged that S1 would make snide remarks and interrupt her. Complainant referred to a meeting she held at 9:00 a.m. When S1 arrived, he remarked, “9:00 a.m. meeting, what a concept.” 2 The claims have been re-ordered chronologically and re-worded for clarity. 2020001601 3 Complainant says that S1 yelled at her during another meeting after she sought clarification on S1’s decisions. Complainant added that S1 provided “negative, disparaging feedback” to S2 for her mid-term review, such as saying that she was not good to work with, was not a team player, and did not follow instructions well. Complainant rejected the criticism and suggested that S1 is difficult to work with. For instance, as alleged in Claim (7), S1 would provide one set of directions, and then contradict himself the next day. As alleged in Claim (5), Complainant asserted that she told S2 about S1’s behavior, but S2 did not do anything about it. S2 acknowledged receiving S1’s feedback about Complainant’s performance, and that Complainant disagreed with the feedback. S2 noted that there was considerable tension between Complainant and S1 because of organizational changes that were being planned and implemented, but S1 did not believe that Complainant was being treated differently than other division employees. S2 believed the directions S1 provided Complainant were appropriate and reasonable. S1 denied yelling at Complainant and said that he has a habit of speaking loudly when using speakerphones. S1 speculated that he may have been using a speakerphone that day. A coworker testified that she attended a teleconference in which S1 apologized for speaking or yelling too loudly. Regarding Complainant’s requests for training, Complainant explained that S1 denied Complainant’s first request to attend the 2018 Blacks in Government conference because of funding. Complainant was surprised because they had just been talking about Complainant taking project management training. In 2019, S1 approved the training, but did not approve travel funds to attend the training. Complainant protested that S1 frequently traveled on Agency business, so the Agency should have funds to send her to the conference. S1 explained that he prioritized security operations training over project management training because the division’s focus was changing. In 2018, the Agency prioritized an employee’s request to attend security-oriented training. When that employee withdrew, another employee was granted funds to attend cyber security training. In 2019, the same employee who was prioritized in 2018 again withdrew from consideration. Complainant then received the funds. In Claim (2), Complainant explained that S1’s comment regarding Native Americans was not directed at Complainant but was completely inappropriate nonetheless. Complainant asserted she has Native American ancestry but conceded that S1 would have no way of knowing that. Further, S1 “as a self-touted native southerner/Virginian, was aware of the intermingled history of Native Americans and African Americans when he made the comment.” S1 acknowledged making a similar comment, but contended that it was in response to a question from a coworker. The coworker had asked that, since S1 always dresses in country/cowboy outfits, why not dress as an Indian? S1 noted that his grandfather, while not a Native American, was born and raised on a Native American reservation. Thus, he had too much respect for Native Americans to dress as one. S2 recalled the remark, but believed it was not intended to indicate any disrespect to Native Americans. S2 also did not recall receiving any complaint from Complainant or any other employee over S1’s remarks. 2020001601 4 Complainant noted, regarding Claim (3), that she served as the lead for the FING project in the one previous quarter that the project was conducted and argued that S1’s decision to assign the project to another co-worker (CW1) constituted a diminishment of her work responsibility. S1 responded that he harbored no discriminatory intent in assigning Complainant’s coworker as the lead for the FING project and that Complainant was assigned to the project to support CW1. In Claim (4), Complainant said that she asked S2 for a promotion. In response, S2 asked whether her position was a GS-14/15 or just a GS-14. Complainant thought S2’s question was very “telling” since she was a GS-13 and was seeking promotion to the GS-14 level. Subsequently, S2 told Complainant that her position had no promotion potential. Complainant believes this to be discrimination because other African Americans have been denied promotions. S2 responded that Complainant’s position simply did not have promotion potential to the GS-14 level. To promote Complainant, the division would need to identify the need for a higher-grade position, receive Agency approval, and allow others to compete for the position. Since the division was shifting its focus, as detailed in Claim (8), S2 did not think there would be a long- term need for a project management-focused position, so the division did not begin the process to gain approval for a higher-level position. S1 added that he was hired to transform the division “from its previous functional organizational construct to a new operational model that meets outstanding Government Accountability Office, Office of Management and Budget, and the Agency’s Office of Inspector General’s findings/recommendations.” Thus, the division “would no longer lead project management efforts [and] no longer has formalized projects or new work that is project management focused.” Accordingly, S1 began assigning Complainant work outside of the division in line with her project management skills, and the Agency has been working to find her work that requires an industrial engineer with project management experience. Regarding Claim (8), Complainant asserted that she was the only employee in her division who was told that she did not have a future in the division. S2 explained that Complainant’s position was focused on project management, which would no longer be relevant to the division’s new emphasis. Rather, the division had more of a need for “civil servant Watch Officers responsible for managing and addressing [division] incidents as they occur.” These positions involve shift and weekend coverage. As such, the division would not be managing projects, and therefore did not have a need for someone in Complainant’s position. S2 noted that he received notification that Complainant was not interested in working as one of the new Watch Officers, so the Agency would need to reassign Complainant, as it had done with four other employees. Complainant asserted the Records Custodian assignment in Claim (9) is further evidence of discrimination because it was a very low level job, and an effort to undermine Complainant’s capabilities. S1 explained that, due to the division’s shifting focus, he was trying to find work for Complainant based on her abilities. S1 denied the duties were low level and noted that they were reassigned to a GS-14 employee. S2 also denied that the duties were low level, but rather 2020001601 5 were intended to be collateral duties and noted that the assignment was done in response to a request by the Center Records Manager to improve management practices in preparation for an audit. After Complainant objected, S1 and S2 concluded that, because Complainant was likely to be reassigned based on the needs of the division, they reassigned the records custodian duties to other employees. S1 denied Complainant’s allegation in Claim (10) and explained that Complainant was excluded from the list to “designate” information as sensitive but unclassified (SBU). S1 noted that only a “Designating Official” may perform such designations. Based on the Agency’s requirements, certain of the division employees qualified to be Designating Officials, but Complainant did not. In Claim (12), Complainant claimed that S1 adjusted her performance plan to add the words, “if applicable” and “if required” following irrelevant elements. Complainant questioned why S1 did not remove the elements entirely. As to Claim (13), Complainant argued that S1 inappropriately questioned her about her use of telework. Complainant specified that she told S1 she wanted to telework for the remainder of a week. In response, S1 asked her to make a request for approval of a temporary change in schedule. Complainant protested that she was not changing her schedule and was just teleworking. S1 explained that Complainant was approved for situational telework, which meant she needed case-by-case approval to telework. S1 said that Complainant was routinely not showing up for work and then saying she was teleworking after the fact. S1 then reviewed all employees’ telework agreements and issued reminders to seek approval on a case-by-case basis. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that management subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues the documentation she provided for the record proves she was subjected to discrimination as alleged. Complainant criticizes that the Agency’s own investigator was responsible for developing the record. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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. 2020001601 6 § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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”). As a preliminary matter, we first address Complainant’s criticism of the use of the Agency’s own investigator to develop the record. EEOC Regulation 29 C.F.R. § 1614.108(a) provides that the investigation of complaints shall be conducted by the agency against which the complaint has been filed. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. We note that Complainant chose not to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. The Commission determines that the investigation was properly and adequately conducted. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Corp. 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, 411 U.S. at 804 n.14. 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, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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 the personnel action at issue, 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); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As more fully discussed above, the record does not support a finding that the legitimate, non- discriminatory explanations offered by management were pretextual or otherwise motivated by 2020001601 7 discriminatory animus. For example, as to the denial of training alleged in Claim (1), S1 explained that the division had limited training funds and prioritized them accordingly. Regarding Claim (3), S1 said he simply assigned CW1 to work on the FING project as part of his management duties. As to Claim (4) S2 addressed Complainant’s request for promotion and explained that he could not promote Complainant to GS-14 because her position’s full performance was at the GS-13 level and he had no justification to request an increase in grade because Complainant’s duties within the division were being phased out. With respect to Claim (9), S1 explained he was directed to designate an employee as Records Custodian, and asked Complainant to perform the duties because she had time and based on the Agency’s shifting needs. When Complainant requested, S1 assigned the duties to other employees. Regarding Claim (10), Complainant also did not qualify to be a Designating Official to designate information as SBU. Finally, regarding Claim (13), Complainant was approved only to perform situational telework with prior approval but had several occasions where she performed telework without receiving advanced approval. S1 subsequently reviewed the telework agreements for all employees. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden. Complainant does not address any of S1’s reasons but rests on speculation that S1 discriminates against African-Americans. Complainant’s arguments do not show, by a preponderance of the evidence, that discrimination occurred. Hostile Work Environment To establish a hostile work environment claim, 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; and (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 to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must 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 must also prove 2020001601 8 that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. While S1’s comment at the October 31, 2018 meeting was inappropriate and unprofessional, there is no evidence that the remark was directed at Complainant or based on Complainant’s protected classes. The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Here, the Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment as alleged. 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 decision. 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 2020001601 9 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 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. 2020001601 10 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 August 31, 2021 Date
