[Redacted], Eileen S., 1 Complainant,v.Deb Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020002157 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen S.,1 Complainant, v. Deb Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020002157 Hearing No. 570-2017-01514X Agency No. DOI-NPS-17-0084 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 27, 2019, 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Police Officer in its Traffic Safety Unit located in Washington, D.C. She filed a complaint alleging discrimination based on sex2 when: 1. From 2012 to present, she was the only Officer receiving “call outs” and required to be “on call status”; 2. In 2014, after she had raised concerns of hostility from her Sergeant, S1, management assigned him to be her immediate supervisor; 3. From 2014 to September 2016, S1 failed to provide available equipment to her that was needed for her job; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Complainant withdrew the bases of religion and reprisal. 2020002157 2 4. In or around August 2015, S1 gave Complainant a direct order that she was not allowed to go to Headquarters to inquire about her pay after management failed to certify the pay; 5. On or about September 30, 2015, management called Complainant into a dark and vacant room to instruct her to sign a counseling notice. Complainant asserted that she felt the counseling was unfair and she believed that she was retaliated against for reporting; 6. In or around October 2015, S1 referred to Complainant’s children in a loud and boisterous voice, in the presence of others in the parking lot, that, “those are not your fucking kids.” S1 continued to say, “they are not yours and the job does not give a fuck about them.” Complainant contends that she was stunned, embarrassed, and upset at S1’s comments; 7. On or about April 2016 and around October 24, 2016, S1 denied her opportunities to attend training; 8. In or around May 2016, and again around October 2016, she was not selected for [an] ADHOC Committee; 9. On or about August 6, 2016, at 5:21 am, S1 left “unprofessional and excessive” voice messages on Complainant’s work issued mobile telephone instructing her to contact him when she received the voice message; 10. On or about August 24, 2016, S1 instructed her in a loud and boisterous tone to “follow the chain of command” and that Complainant, “should not speak with [another Sergeant, B1].” Complainant asserted that S1 was upset because the Major assigned her to the Training Branch to work with B1; 11. On August 29, 2016, S1 contacted Complainant on her work mobile telephone and instructed her to report to a traffic accident. Complainant asserted that she was off duty and not on the stand-by schedule; 12. Beginning in or around September 2016, to current, the Manager has intentionally avoided communicating with Complainant; 13. In or around September 2016, S1 omitted informing Complainant when he was absent from the office, but he informed all other members of the unit; 14. On or about September 7, 2016, S1 omitted contacting Complainant when he contacted other unit employees to offer overtime; 15. On September 8, 2016, S1 contacted Complainant’s work issued mobile telephone during her off-duty hours to request dates to retake the Commercial Motor Vehicle (CMV) Level B Certification exam; 16. On or about September 12, 2016, S1 contacted Complainant’s personal mobile telephone and instructed her to report to a traffic scene; 17. On or about November 15, 2016, S1 instructed Complainant to take the CMV Level B Training Test. Complainant maintained that none of the other officers in her unit were required to maintain a CMV Level B Certification; 18. On or about November 28, 2016, S1 omitted providing Complainant a 2016 Employee Performance Appraisal Plan (EPAP) while all the other unit employees (males) were provided theirs. Complainant asserted that on or about November 2015, her EPAP rating went down from previous years and on or about November 2020002157 3 18, 2014 her EPAP contained negative comments and was provided about a month after her co-workers received their EPAPs; and 19. To date, Complainant has not received her mid-year 2017 EPAP evaluation. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her favor. We agree with the AJ’s determination that: Complainant offers no evidence to suggest that the events underlying her claim were motivated by her sex, nor that any of the explanations the Agency has asserted for the events she challenges are pretextual. Absent a nexus between the events underling the claims and her sex, Complainant cannot prevail on claims of sex-based disparate treatment or harassment. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2020002157 4 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision 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 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). 2020002157 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 24, 2021 Date