[Redacted], Georgianne B., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2021000046 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgianne B.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021000046 Agency No. DOI-OS-20-0244 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 September 22, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fiscal Specialist, GS-9 at the Agency’s Interior Business Center, Office of Natural Resources Revenue facility in Lakewood, Colorado. On March 16, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the basis of sex (female) when: 1. On unspecified dates, vacancy announcements have been left on her desk and shared with her verbally. 2. In April 2018, her supervisor (S1) stated in her midyear performance appraisal that she needed to control her emotions better. 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. 2021000046 2 3. In 2018, after she alleged sexual harassment against one of her coworkers (C1), S1 made her feel uncomfortable, removed her as C1’s trainer, and accused her of making the alleged sexual harasser feel as though he were not part of the team. 4. On several occasions in 2019, S1 accused Complainant of giving him “attitude” and “resisting him” and his directions. 5. On or about November 26, 2019, S1 ignored Complainant’s email regarding C1’s errors and followed up with her implying she had not completed an assigned task. 6. On December 30, 2019, S1 told her on a day she did not wear make-up that she “looked like shit” and suggested she go home and telework. 7. On January 10, 2020, S1 convened and belittled Complainant in a meeting to address C1’s concern that Complainant included other recipients on emails containing his errors, which was what she was directed to do. 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. 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”). Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); “Enforcement Guidance on Harris v. Forklift Systems, Inc.”, EEOC Notice No. 915.002 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993). 2021000046 3 The Supreme Court has stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII’s purview.” Harris, 510 U.S. at 22. The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. Id.; see also Toney E. v. U.S. Postal Serv., EEOC Appeal No. 2019005346 (Nov. 5, 2019). To prove a case of a hostile work environment, complainant must show: (1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her protected status; (4) that the harassment affected a term, condition or privilege of employment; and (5) that the agency knew or should have known of the harassment. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. “Enforcement Guidance on Harris v. Forklift Systems, Inc.,” supra. We find that Complainant failed to demonstrate that the incidents as alleged rendered her work environment hostile. First, Complainant failed to establish by a preponderance of the evidence that the incidents occurred because of her sex. Regarding claim 1, the record shows that the person who left the job announcements on Complainant’s desk is unknown, another male employee stated that job announcements were also left on his desk, and management sent out an email to the entire team admonishing such behavior. Regarding claim 2, Complainant admits that she would sometimes get emotional during meetings; thus, S1’s suggestion during a performance review that she work on controlling her emotions does not suggest discriminatory animus based on her sex. Regarding claim 3, in 2018 Complainant reported to S1 that C1 rubbed her shoulders making her feel uncomfortable. S1 spoke to C1 about the behavior, and Complainant was removed as C1’s trainer in an attempt to minimize their interactions. The Agency simply minimized the contact between C1 and Complainant. There is no indication or claim that any other sexually harassing conduct involving C1 and Complainant occurred after this one time alleged incident (C1 denies the incident and there is no other evidence showing the incident occurred except for Complainant’s claim). Similarly, regarding claims 4, 5, and 7. Complainant asserts that she was unjustifiably reprimanded but has not presented any evidence to show that the behavior was related to her sex. Regarding claim 6, where S1 told Complainant she looked like “shit,” both Complainant and S1 indicated that Complainant had been sick in the days prior to the comment. S1 reported he was teasing Complainant based on what he perceived to be a friendly relationship between them. While S1’s behavior may be considered inappropriate and rude, the evidence does not suggest it was related to her sex. Finally, the Commission finds that none of the allegations were sufficiently severe or pervasive to constitute a hostile work environment under the law. 2021000046 4 The Commission has long held that Title VII is not a civility code. Rather, the statute prohibits “only behavior so objectively offensive” as to alter conditions of employment. See Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 23. In this case, the behavior did not reach that level. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 2021000046 5 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 November 4, 2021 Date