[Redacted], Ellen G., 1 Complainant,v.Debra A. Haaland, Secretary, U.S. Department of Interior (DOI Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2020003136 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen G.,1 Complainant, v. Debra A. Haaland, Secretary, U.S. Department of Interior (DOI Bureau of Land Management), Agency. Appeal No. 2020003136 Agency No. DOI-BLM-19-0442 DECISION 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 February 19, 2020 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 Records Administrator, GS-0301-12, at the Agency’s New Mexico State Office in Santa Fe, New Mexico. On May 29, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of race (Caucasian), sex (female), and color (White) when: 1. In July 2018, Complainant’s supervisor (S1) denied Complainant’s Freedom of Information (FOIA) training request; 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. 2020003136 2 2. In October 2018, S1 downgraded Complainant’s Fiscal Year 2018 Annual Performance Appraisal rating; 3. On various dates, she was subjected to unwelcome comments; 4. From July 2018 to April 27, 2019, S1 interfered with her duties and assignments when she removed the Records and Privacy Act job duties from Complainant and reassigned them to Complainant’s coworker. Claim 1 - Training Request The record shows that it was Complainant’s decision not to attend the FOIA training. Permission had been granted for her to attend, but Complainant informed S1 (a Caucasian woman, who also served as the Administrative Officer) that she did not want to attend. Complainant later sent an email to tell S1 that she changed her mind, but S1 said that she was unaware of Complainant’s email and Complainant did not approach her to express her renewed interest in attending the training. Complainant did not offer any evidence to rebut this. Claim 2 - 2018 Annual Performance Appraisal S1 issued Complainant a rating of Fully Successful. Complainant believed she should have been rated higher. S1 affirmed that in order to receive an “Exceptional” rating, Complainant was expected to conduct three trainings during the rating period. Complainant did not conduct her required field trainings. In addition, S1 asserted that Complainant had been absent for approximately 600 hours of the rating period; therefore, she could only rate Complainant for the time she was in the position. The record documents that Complainant was on leave for 400 hours during the rating period and was away from work 192 hours due to the government furlough. Complainant averred that she could not conduct her required field trainings during the rating period because the Agency failed to issue her an official travel card until November 15, 2018 - which was after the rating period ended. S1 averred that Complainant got a travel card when she was hired, and this was not a valid excuse. Claim 3 - Unwelcome Comments Complainant claimed that S1 permitted CW1 (a Hispanic female co-worker) to subject her to unwelcome comments. For example, Complainant alleged that she overheard CW1 state that she was too blonde and too thin. In addition, Complainant alleged that CW1 told other employees that Complainant “did not know what she was doing in FOIA” and that Complainant was “horrible to work with.” S1 denied being aware of the “too blonde and too thin” comments, but both Complainant and CW1 made comments about the other not knowing how to do FOIA work. S1 stated that she explained the process to both during meetings, but Complainant complained that their process was wrong. Additionally, S1 affirmed that she informed Complainant and CW1 that they needed to treat each other respectfully and professionally. S1 denied making any offensive comments. 2020003136 3 Claim 4 - Change in Duties S1 averred that Complainant always shared the FOIA request duties with CW1, but the lower- graded coworker had the less complicated assignments. S1 stated that she did not remove any of Complainant’s FOIA duties. The record shows that Complainant informed management, on February 26, 2019, that she had accepted a position at another agency. Thereafter, management held discussions with Complainant about the transition of her position to a new employee. Complainant was not happy with the discussion, because Complainant thought the replacement under consideration for the assignment was rude and unprofessional and had been trying to undermine Complainant. 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). 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 the Agency subjected her to discrimination 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”). Section 717 of Title VII requires that federal agencies make all personnel actions free of race and sex discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment “shall be made free from any discrimination based on race, color or sex”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020003136 4 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions as discussed above and the record does not otherwise substantiate Complainant’s claims. Specifically, regarding the FOIA training, Complainant was not sent to training because she told S1 that she did not want to go and S1 missed her email after she changed her mind. S1 noted that Complainant did not otherwise approach her to renew her request to attend the training. As to her appraisal, Complainant had been absent for a substantial portion of the rating period. The ratings reflected the supervisor’s assessment of her performance and her not conducting the three trainings required to justify a higher rating. Finally, regarding her claim that S1 interfered with her duties, the record reveals that Complainant was assigned the more complex portions of the duties and CW1 handled the less complex parts. 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 animus. Complainant does not carry her burden here. Accordingly, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a hostile work environment claim, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his statutorily protected class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep’t of Veterans Affairs, EEOC Appeal 0120142904 (Oct. 18, 2016). 2020003136 5 In other words, 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. We note that Complainant may have perceived the comments to be hostile and that she disagreed with the Agency’s reasoning for its actions. However, she provided insufficient evidence to show that the alleged incidents occurred as she stated or that the incidents occurred because of her protected bases. Even assuming the incidents occurred as alleged, they are insufficiently severe or pervasive to establish a hostile work environment. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination or a hostile work environment by the Agency as alleged. CONCLUSION Accordingly, 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. 2020003136 6 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. 2020003136 7 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 June 2, 2021 Date