[Redacted], Jane H, 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Sep 14, 2021

Appeal No. 2020003368 (E.E.O.C. Sep. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jane H,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2020003368 Agency No. 17-0022-CBC DECISION On May 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 8, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was the Assistant Director, GS- 0260-14, in the Agency’s Office of Civil Rights and Equal Opportunity within the Environmental Management Consolidated Business Center (EMCBC) in Cincinnati, Ohio. On December 29, 2016 (and subsequently amended), Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American) and in reprisal for prior protected EEO activity when: 1. On January 25, 2017, management deliberately neglected to include Complainant on an email regarding a change of assignment for one of her subordinates; 2. On December 29, 2016, Complainant decided to take a downgrade from a GS-14 to a GS-13 equivalent outside the Agency to avoid hostile behaviors; 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. 2020003368 2 3. On October 20, 2016, management informed Complainant that she would be participating in a 120-day detail assignment to the National Nuclear Security Administration; 4. On September 20, 2016, management sent an email to Complainant regarding not approving an extended detail assignment for one of her subordinates; and 5. On September 20, 2016, management reprimanded Complainant for being unresponsive to the Headquarters Civil Rights Office. Because the officials named in Complainant’s complaint were in charge of the Agency’s EEO program, the processing of her complaint was handled by several other agencies in order to avoid conflicts of interest. Complainant filed her formal complaint with the Office of Diversity, Inclusion, and Civil Rights at the Small Business Administration (SBA), but the SBA did not have the resources necessary to conduct the investigation. The case was transferred from the SBA to the Department of Homeland Security (DHS). DHS completed the investigation on March 14, 2018 and notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. DHS further determined that as of November 20, 2018, it had not received a hearing request from Complainant. Although DHS initially agreed to issue the final decision, it later found that it did not have the authority to issue a final decision on the Agency’s behalf. The Agency then engaged the National Aeronautics and Space Administration (NASA) who issued the final decision on April 8, 2020. NASA found that Complainant failed to prove that the Agency discriminated against her as alleged. On appeal, Complainant argues that the Agency failed to investigate the complaint in a thorough and impartial manner as prescribed by the Commission’s regulations and enforcement guidance: In summary, the present ROI established does not support the foundation for a decision, Where elements may or may not have been supported, the Complainant was not allowed to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames, to include elements of a harassment-specific review. The investigation did not provide an adequate amount of effort or time and neglected to explore the evidence presented, to include a harassment-specific review. Therefore, the agency failed in its responsibility for conducting an impartial and appropriate record and while the record is insufficient, the FAD cannot be sound. We note that the EMCBC Deputy Director, Complainant’s immediate supervisor (S1), did not provide an affidavit despite the DHS Investigator’s attempts to contact him. The Deputy Director of the Department’s Office of Civil Rights, Complainant’s second-line supervisor (S2), however, did provide an affidavit. 2020003368 3 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 Chap. 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”). As an initial matter, Complainant claims on appeal that the investigation was inadequate and unfair. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper, notwithstanding the unusual circumstances present. We note that Complainant failed to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, 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 his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the Complainant failed to show she was subjected to conduct so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Even assuming arguendo that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. 2020003368 4 The record reflects that the totality of all of the incidents was more likely the result of routine supervision and general workplace disputes and tribulations. Furthermore, to the extent that Complainant is alleging that she was subjected to disparate treatment, apart from her own assertions, Complainant has not presented any affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradicts or undercuts the Agency’s explanations regarding the above-described incidents. Again, we note that there are no indications in the record that Complainant asked for a hearing when given the opportunity to do so. Therefore, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing and we can only evaluate the facts based on the weight of the evidence presented. On the basis of that evidentiary record, we agree with the Agency that Complainant has not established the existence of an unlawful discriminatory motive on the part of any management official with respect to any of the incidents listed in her complaint. Constructive Discharge Complainant appears to be arguing that in taking a lower-graded position at another agency, she was constructively discharged. The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, the Commission finds that Complainant has not shown that the Agency's actions were motivated by discriminatory or retaliatory animus. As a result, we find that Complainant was not subjected to discrimination, reprisal, a hostile work environment, or constructive discharge as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003368 5 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. 2020003368 6 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 September 14, 2021 Date