[Redacted], Delphia F., 1 Complainant,v.Scott de la Vega, Acting Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020000137 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Delphia F.,1 Complainant, v. Scott de la Vega, Acting Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020000137 Hearing No. 550-2015-00088X Agency No. DOI-NPS-14-0127 DECISION On August 28, 2019, 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 July 24, 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 Park Ranger, GL- 0025-09, at the Agency’s Golden Gate National Recreation Area (GGNRA) in San Francisco, California. On February 25, 2014 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020000137 2 1. on June 29, 2013, she was subjected to inappropriate comments regarding her family life; 2. on July 24, 2013, she was falsely accused of failing to pull a case number for an investigation, and not following up on requests for investigations from the members of the San Mateo team; 3. on July 25, 2013, management failed to take action when notified about the harassment by denying her request for a new supervisor; 4. on January 5, 2014, she was referred to as “my dear” in a staff meeting; 5. on January 10, 2014, she was directed to remain on the Employee Safety Committee (ESC); 6. on January 22, 2014, she was directed to provide a written bi-weekly update of her work assignments and tasks; 7. on July 10, 2013, she was denied one day per pay period to train with GGNRA Mounted Patrol Unit (HMP); 8. on August 14, 2013, her request to have someone who she believed would conduct an impartial investigation was denied; 9. on August 16, 2013, she was provided investigatory findings that her claim of harassment was unfounded; 10. on January 15, 2014, she was blocked from transferring to a squad which would allow her to work day shift; 11. on August 14, 2013, and November 21, 2013, she was not given her recommended Time Off awards; 12. on November 17, 2013, her work schedule was adversely changed to the 5/4/9 schedule; 13. on March 17, 2014, she was falsely accused of being Absent Without Leave (AWOL); 14. on March 21, 2014, she was asked to complete a list of 10 things she likes/enjoys about her current position, while others were not asked to complete that assignment; and 15. on April 20, 2014, she was ordered to write narrative reports for two routine case incidents, while others were not ordered to complete that assignment. In addition, Complainant further alleged that she was discriminated against on the bases of sex, disability (ankle sprain), and in reprisal for prior protected EEO activity when: 16. on March 27, 2014, and March 29, 2014, she was denied reasonable accommodation (light duty assignments) and sent home on sick leave. Complainant claimed that her first-line supervisor (S1) denied her work assignments, tried to change her schedule, and subjected her to unusual extra duties. Complainant asserted that S1 discriminates against women. In addition to the above-discussed claims, Complainant describes a situation in which she asserted that the Agency needed access to easement documents related to their activities in San Mateo. In response, S1 said, “you’re preaching to the choir, my dear.” Complainant told S1 that she was bothered by the remark, and that it was patronizing. 2020000137 3 Complainant asserted that the remark was “part of a pattern of misbehavior” and that he frequently referred to other female coworkers as “my dear.” S1 acknowledged that he may have been insensitive and apologized. He asked the Chief Ranger (S3) to ensure that this incident be placed in his personnel file. Complainant claimed that S1’s retaliatory actions began when Complainant would not change her schedule to work night patrols on July 5 and 6, 2013. According to Complainant, S1 ridiculed an email response Complainant had sent, declining the shifts due to family reasons. S1 asked, other than her husband, did Complainant have family in the area. S1 then suggested that Complainant’s schedule might be changed from working 10-hour days to nine-hour days. Complainant argued that none of her male coworkers were subjected to similar comments regarding their home lives. Subsequently, Complainant complained about S1’s actions to her second-level supervisor, the Deputy Chief (S2). Complainant said that S1 was dangerous, that she was afraid to be alone with him, and asked to be transferred to a different supervisor. Complainant detailed additional complaints about S1’s style and failure to respond to her requests for equipment. S2 responded that Complainant’s remarks were bordering on slander and was disrespectful of S1, and denied her request for a different supervisor. Work Directives After her complaint, Complainant alleged that S1 began micromanaging her. On July 23, 2013, S1 accused her of not pulling case numbers for an investigation she worked on. Complainant denied the accusation and asked S1 for specific examples, which he was unable to provide. Complainant contended that other male coworkers were not subject to similar micromanaging. In January 2014, S1 directed Complainant to provide written bi-weekly updates regarding, among other things, dates for leave; training; meetings; ongoing tasks; projects; work assignments; case management; caseload status; and other matters. Complainant asserted that no other field rangers were required to provide biweekly reports. On March 17, 2014, S1 emailed Complainant and suggested that she was AWOL because she had said that she was taking the remaining time of that day’s shift as physical training time, but S1 did not see her in the gym and her car was not in the parking lot. Complainant denied the accusation, and Complainant was never charged AWOL. Additionally, Complainant alleged that S1 required her to make a list of 10 things she liked/enjoyed about the job, but does not understand why she needed to create the list, and said that no other ranger was required to do so. Complainant believes this was a bizarre request. In April 2014, Complainant claimed that S1 required her to write narrative reports for routine cases that do not normally require write ups. S1 and other management officials generally deny Complainant’s allegation that these actions were discriminatory or harassing. 2020000137 4 S2 added that S1’s directives generally constitute normal workplace directives. S1 added that, as a supervisor, he had to trust and verify his employees’ work. Further, Complainant’s work schedule did not align with S1’s and therefore, he did not have as much direct contact with Complainant, so he asked Complainant to provide the same information he receives in person from his other employees. Reassignments and Schedule Changes Complainant also alleged that S1, in conjunction with S2 and S3, retaliated against her by preventing her from changing shifts or being reassigned. On July 10, 2013, Complainant had requested one day per pay period to train with GGNRA HMP. However, on July 30, 2013, S1 denied her request and said that he wanted Complainant to be an active participant in field operations every work day. According to Complainant, S1 also refused to permit Complainant to step down from the ESC on January 5, 2014, and she needed to wait until a replacement was appointed, which did not happen until February 24, 2014. S3 noted that employees did not decide what assignments they accepted, and that S1’s decision to keep Complainant on the ESC until a replacement was found “is good business management.” S1 also did not allow Complainant to transfer to the Mounted Patrol’s day shift. Complainant noted that she was already working day shift, but her request for a transfer would have resulted in her working under alternate supervision. Complainant had been working a collateral duty in the night shift with the Mounted Patrol, when it announced it was seeking individuals to fill a day shift position. On December 11, 2013, S2 said that Complainant could not transfer into the day shift because that would result in a vacancy in the Mounted Patrol’s night shift. If she could find someone to assume her duties in the night shift, she would be able to transfer to the day shift. Complainant identified a co-worker (CW1) as an employee willing to assume her night shift duties. On January 10, 2014, Complainant informed S2 about CW1’s interest. However, on January 15, 2014, in a meeting with Complainant and the Mounted Patrol supervisor, S1 said that CW1 could not transfer. Shortly thereafter, the facility received notification that any interested ranger could apply for a transfer to the Mounted Patrol night shift. Complainant believed that S1’s actions were a continuation of his efforts to retaliate against her. The Mounted Patrol supervisor explained that his shift is from 2:00 p.m. to midnight, and he needed Complainant to work night shift duties. She was looking for a day shift, and he could not address that concern. The supervisor spoke with CW1, who was interested, but did not want to burn bridges, so he wanted to complete his role as a San Mateo ranger. Therefore, the Agency made an announcement to hire a ranger on his squad. CW1 then came forward and expressed his interest in transferring, but once the announcement went out, GGNRA could no longer complete the transfer internally. 2020000137 5 Complainant conceded that when she transferred to GGNRA, her schedule was a 5/4/9, in that she works eight nine-hour days and one eight-hour day in exchange for one day off every two weeks. On January 27, 2013, she changed to a schedule that consisted of four ten-hour days in order to be consistent with every other GGNRA field ranger at that time. On August 1, 2013, S1 changed Complainant’s schedule back to the 5/4/9 schedule. Complainant protested that this schedule required her to work 26 additional days per year and was done in retaliation. S2 noted that CW1 worked a 5/4/9 schedule, and that was the default schedule under rangers’ conditions of employment. S2 denied Complainant’s assertion that yet another male coworker was assigned to a 5/4/9 schedule but never held to it. Improper Investigation On August 9, 2013, S2 informed Complainant that the Acting Deputy Chief (ADC) would be conducting an investigation into Complainant’s allegations against S1. Five days later, Complainant voiced objections about ADC conducting an investigation because “he was in an acting position and wanted to get a permanent position and [S2] was the hiring official.” But Complainant’s third-level supervisor, the Chief Ranger (S3) denied her request and said he believed ADC could be impartial, but also asserted that Complainant’s statement that S1 was “dangerous” was a poor choice of words. Complainant believed management orchestrated the investigation to discredit her. Complainant explained that she received the findings of ADC’s investigation from S2 on August 16, 2013. The investigation did not substantiate Complainant’s allegations, but Complainant contended that the investigation did not include substantial portions of her interview with ADC in which she identified specific instances of harassment. ADC had echoed S3’s statement that Complainant used a poor choice of words. S3 testified that he believed S1 was merely trying to ensure that Complainant was accountable for her work, which she did not like. S3 said that Complainant made general, nonspecific accusations, but because she said that S1 was dangerous, the Agency’s human resources office advised GGNRA to conduct an investigation. S3 noted that ADC was one of Complainant’s job references, so he found it hard to believe ADC would be biased against Complainant. Further, ADC had done investigations in the past, and was experienced. Time Off Award Complainant explained that the Agency regularly conducts Physical Efficiency Battery (PEB) tests, and that standard operating procedure was to award 10-hour time off awards for all rangers who score 75 percent or higher in all categories. Complainant passed the PEB, but on August 15, 2013, she noticed a printout of an email between S1 and S3, in which S1 notified S2 and S3 that Complainant passed the PEB, and recommended her for a time off award. S3 responded that he was implementing a reduced time off award system for PEB performance, and that Complainant should have a reduced award. 2020000137 6 Complainant successfully completed a second required PEB in November 2013, and said she was also not given a second 10-hour time off award at that time. Complainant noted that no other rangers received their recommended time off award. S3 explained that he felt that the time off awards were excessive, and he wanted to develop a new policy. Until he could do so, he put the awards on hold for all employees. Once the policy went in place, they retroactively awarded Complainant the time off awards. Denial of Reasonable Accommodation Complainant suffered an off-duty ankle sprain on March 25, 2014, and was under doctor’s orders to perform only light duty work until April 3, 2014. Complainant admitted the injury was temporary and she was expected to recover within months. S1 told Complainant to take sick leave until she recovered, but another supervisor (S1a) told her on March 29, 2013, that he had office work for Complainant to perform. However, S1 told Complainant to go home. S2 explained that Complainant working light duty due to an off-the-job injury was problematic because the Agency also had an employee who was injured on the job and they did not give that employee light duty. 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). Complainant timely requested a hearing but subsequently withdrew her request. After the Agency did not issue a final decision, Complainant filed an appeal with the Commission. In Delphia F. v. Dep’t of the Interior, EEOC Appeal No. 2019002304 (June 26, 2019), we remanded the complaint to the Agency for issuance of a final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. 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. § 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”). 2020000137 7 As a preliminary matter, we note Complainant alleges a new claim of discrimination on appeal. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should Complainant wish to pursue this claim, she is advised to contact an EEO Counselor to initiate the administrative process. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, 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 he 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 that the conduct was taken because of a protected basis -- in this case, because of her sex or for her prior protected EEO activity. 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 incidents alleged by Complainant are not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. For example, S3 explained he was seeking to adjust time off awards because he believed they were excessive and paused all awards until a new policy could be instituted. Complainant was subsequently retroactively provided time off awards. Complainant’s issues with assignments and transfers were the result of differences between Complainant’s desired shift hours and the hours that were available to her. Management does, indeed, have the discretion to assign work to Complainant. We note that the record reveals that S1 referred to Complainant as “my dear” during a meeting which Complainant justifiably found offensive and patronizing. S1 subsequently apologized and ensured that the incident was documented in his personnel file. There is no evidence that any similar conduct recurred. We have held that claims of an isolated incident of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). EEO laws are not a civility code. Rather, they forbid “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). 2020000137 8 The record reflects that the totality of the conduct alleged was more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. It is clear that Complainant disagreed with S1’s management style and was dissatisfied with many of management’s decisions, but there is no indication that discriminatory or retaliatory animus played a role. The Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. Denial of Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). Following a review of the record we find that Complainant has failed to establish that she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g). Under that regulation, a disability means a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment, meaning that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both “transitory and minor.” Id. Complainant has not shown she incurred a physical impairment that substantially limited one or more major life activities. In this matter, Complainant asserted that she was diagnosed with an ankle sprain on March 25, 2014, and that her physician limited her to light duty until April 3, 2013 - a little more than one week. Complainant was granted leave to recover at home. Complainant does not suggest that she was expected to experience more permanent limitations or complications, nor does she allege that she was unable to return to full duty according to her doctor’s instructions. Accordingly, we find that the Agency correctly concluded that Complainant's medical condition was transitory and minor, and therefore not a qualifying disability entitling her to a reasonable accommodation. See Idell M. v. Dep't of Agric., EEOC Appeal No. 0120140792 (Aug. 4, 2016) (finding complainant was not entitled to a reasonable accommodation when recovering from surgery on her left foot after all medical documentation indicated that the condition was temporary); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122572 (Dec. 4, 2014) (finding no evidence of qualifying disability within the meaning of the ADAAA when 2020000137 9 Complainant had a leg injury that required two surgeries and her recuperation periods were no more than two to four weeks). Furthermore, we find no discriminatory or retaliatory animus in the Agency’s actions in this incident. 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 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. 2020000137 10 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 February 9, 2021 Date