[Redacted], Diane G., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 2020000007 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2020000007 Hearing No. 570-2019-00466 Agency No. HS-HQ-00121-2018 DECISION On September 23, 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 August 30, 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 Supervisory Law Enforcement Specialist (Area Commander), GS-1801-13, at the Agency’s Federal Protective Service facility in Chicago, Illinois. On December 5, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of sex (female) when: 1. on October 13, 2017, the District Commander (DC): 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. 2020000007 2 a. issued Complainant a memorandum for Failure to Satisfactorily Complete Probationary Period for Supervisory Position; b. issued Complainant an adverse rating on her Employee Performance Plan and Appraisal Form; and c. provided feedback and training opportunities to males, excluding Complainant from such training and feedback. 2. On February 15, 2018, Complainant received a job offer rescission letter from the National Program Protective Directorate Office of Infrastructure Protection (OIP) rescinding an accepted and confirmed job offer. Complainant was promoted to the Supervisory position on January 7, 2017; however, on October 13, 2017, Complainant’s supervisor, the District Commander (DC), demoted her back to her previous position as a Law Enforcement Specialist, GS-12 (Inspector). In a memorandum, DC explained that Complainant was within her one-year supervisory probationary period and identified five “serious” incidents that warranted demotion. Specifically, Complainant sought to take last-minute leave on May 30, 2017, without coordinating coverage in her absence. DC explained that Complainant had designated another supervisor (AC1) to cover for her, but that supervisor was not available to cover. DC noted that they “coordinate leave around the holidays to ensure proper coverage. Everyone cannot take leave at the same time.” In a second incident, on June 12, 2017, Complainant approved a staff member’s training without determining whether the Agency had adequate coverage during that time. As a result, the Agency suffered a staffing shortfall. Complainant claimed that she submitted the leave request on May 15, 2017, and DC approved the request on May 24, 2017. Complainant stated that AC1 told her that he was available. DC noted, however, that AC1 was already out on preapproved leave. Further, with regard to the training incident, Complainant contended that she was complying with the Deputy Regional Director’s directive that if an inspector was scheduled for training, they had better attend that training. In a third incident, on June 28, 2017, Complainant was notified of a robbery on federal property at 2:58 a.m., but did not respond to the incident. Rather, Complainant advised the Agency to have the day shift supervisor respond, which would have been after 7:00 a.m. DC said that Complainant should have directed the Agency to have an inspector respond and take actions to notify DC right away, and that Complainant should have responded right away. Complainant protested that she received no training on how to respond to a robbery. DC said that if Complainant was unclear on how to handle the situation, Complainant had DC’s 24-hour contact information and could have called for instructions or with questions. Fourth, Complainant failed to maintain a deployment roster, which was among her responsibilities. As a result, the roster on file erroneously contained the name of an inspector who was not deployable because he previously declined a deployment. DC rejected Complainant’s assertion at the time that the information was not readily accessible and contended that it was. Complainant argues that the inspector told Complainant he wanted to be deployed, so she included him on the deployment roster. 2020000007 3 Finally, in the fifth incident, Complainant was involved in a minor traffic incident on September 15, 2017. Complainant reported that a box truck stopped “too close” to her Agency vehicle at a traffic intersection. As soon as Complainant began moving again, her passenger mirror jarred loose, but Complainant did not pursue the box truck. DC believed Complainant should have activated her emergency equipment and initiated a stop of the box truck. Complainant argued that it was within her discretion whether to initiate the stop and that she would not be able to stop the box truck under safe conditions. Complainant argued that none of these issues were on her mid-year appraisal, which she signed on April 4, 2017. Complainant said that she requested a meeting on her third quarter evaluation, which covered April, May, and June 2017, but she never had the meeting. DC responded that the supervisors were discussing their concerns about Complainant with Human Resources at the time third quarter evaluations were due, and decided not to give Complainant an evaluation. Regardless, DC said she had informal discussions with Complainant about her performance, which contained her concerns. DC said that Human Resources officials advised her that Complainant’s probationary status precluded discipline, and the better option was to remove Complainant from her supervisory position. Complainant asserted that her evaluation, received on October 13, 2017, for the period January 8, 2017 to September 30, 2017, merely incorporated the five critiques DC set forth in her memorandum demoting Complainant, and failed to properly evaluate her based on her performance criteria. According to DC, several inspectors expressed concerns with Complainant’s management style, and that she had been assigned AC1 as a peer mentor, but did not use him. DC also says that Complainant’s staff reported that Complainant did not provide clear guidance, which resulted in unnecessary mistakes. Therefore, these incidents directly impacted Complainant’s performance evaluation. Complainant also contended that DC subjected her to a hostile work environment when she excluded Complainant from training. For example, she had been scheduled for two different training courses dealing with supervisory law enforcement, and DC removed her from both courses. Complainant noted that she was pulled from the second course so a male supervisor could attend. DC explained that one of the training courses was three weeks long, and “operationally, we could not allow both supervisors to be gone for three weeks.” DC “made a decision based on who had been in the position the longest” and the male supervisor had an additional year of tenure as a supervisor. As to the second training opportunity, DC said that Complainant had already attended the class, with the same curriculum, before she was a supervisor, so DC saw little benefit in having Complainant attend again. A male Area Commander (AC2) testified that he is always uncomfortable working with DC because of her personality and style, and that DC generally “has special expectations when you are off duty and off the clock.” AC2 noted that there were several male and female supervisors who were unsuccessful under DC. 2020000007 4 During this time, Complainant sought a position with the Office of Infrastructure Protection (OIP). On January 9, 2018, Complainant was notified of her tentative selection. However, on February 15, 2018, OIP notified Complainant that it was rescinding its job offer. OIP later explained to Complainant that they spoke with her supervisors, who said that Complainant had been demoted to Inspector. Complainant protested that she never received an SF-50 formalizing her demotion. The Deputy Branch Chief with OIP explained that she received the candidate list in November 2017, and interviewed Complainant in December 2017. At that time, Complainant asserted she was a supervisory GS-13. After making an offer to Complainant, the Deputy Branch Chief learned that the documentation Complainant provided did not match up with documentation provided by Human Resources. Specifically, Complainant had been notified of the downgrade both in grade and supervisory status to a non-supervisory GS-12, effective October 2017. Due to this discrepancy, OIP rescinded the offer. The record contains a SF-50 dated January 7, 2018, in which Complainant is identified as a GS- 13 Supervisory Law Enforcement Specialist. The record also contains a SF-52 authorized on October 17, 2017, demoting Complainant to the GS-12 level. In a June 11, 2018, email, a Human Resources official says that the SF-52 was just “recently” processed. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ granted the Agency’s June 27, 2019, motion to dismiss the hearing on the grounds Complainant failed to timely request a hearing. Specifically, the Agency transmitted the investigative file to Complainant on September 13, 2018 by email, but Complainant did not request a hearing until November 21, 2018, well beyond the 30-day window prescribe by EEOC regulations. The AJ remanded the complaint to the Agency, and 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 as alleged. CONTENTIONS ON APPEAL Complainant concedes that she received the investigative file in mid-September 2018, but contends that she had been admitted to the hospital around that time, and that the Agency did not answer her telephone calls and emails. Complainant asserts that she is appealing the denial of her promotion to GS-13, and her 2018 performance evaluation. 2020000007 5 ANALYSIS AND FINDINGS We first address Complainant’s claim regarding her request for a hearing. Complainant acknowledged receiving the investigative file by email in September 2018, but failed to submit her hearing request until November 21, 2018. Complainant asserts that she was admitted to the hospital at the time and encountered other difficulties after she received the investigative file. Complainant provided no explanation to the AJ and did not provide any supporting documentation on appeal. “When a complainant claims that a physical condition prevents him from meeting a particular filing deadline...the complainant must be so incapacitated by the condition as to render him physical unable to make a timely filing.” Alfredo S. v. Social Sec. Admin., EEOC Appeal No. 0120152099 (Aug. 23, 2016) (citing Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989)). We discern insufficient evidence supporting Complainant's assertion that her inability to timely request a hearing was due to such incapacitation or unavailability during the relevant time period. Thus, we find that the AJ did not err in dismissing the hearing request as untimely filed. 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”). 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 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 that the conduct was taken because of her sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2020000007 6 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 animus. Here, Complainant fails to demonstrate that any action DC took was because of her sex. 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. Notably, AC2 provided testimony that demonstrates that DC is a difficult supervisor to work for, regardless of sex. It is clear that Complainant and others disagreed with DC’s management style, but there is no indication that discriminatory animus played a role. Moreover, Complainant does not sufficiently controvert DC’s explanations that Complainant was demoted and received an adverse rating on her performance appraisal because she failed to ensure adequate supervisory coverage on several occasions, failed to follow proper protocols for reporting to a robbery, and did not properly address damage to her Agency vehicle. Further, DC withdrew Complainant from two training courses because Complainant had previously taken one of the courses, and that she could only send one area commander to the other course, and chose to send the commander with more seniority. Finally, the Deputy Branch Chief explained that Complainant stated that she was working for the Agency in a supervisory capacity at the time of her interview for a position with OIP. However, the documentation at the time demonstrated that Complainant was aware she was being demoted from her supervisory position, a fact she failed to disclose to the Deputy Branch Chief. For this reason, OIP rescinded its offer to Complainant. The Commission finds that Complainant has not shown that she was subjected to a discriminatory 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 or a 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. 2020000007 7 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. 2020000007 8 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 25, 2021 Date