[Redacted], Jeanie P., 1 Complainant,v.Dr. Miguel A. Cardona, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2021000469 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeanie P.,1 Complainant, v. Dr. Miguel A. Cardona, Secretary, Department of Education, Agency. Appeal No. 2021000469 Hearing No. 570-2019-00515 Agency No. ED-2018-FSA-0020 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 17, 2020, finding no discrimination concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources (HR) Specialist, GS-15, at the Agency’s Federal Student Aid (FSA) in Washington, DC. On April 13, 2018, Complainant filed her complaint alleging discrimination and harassment based on age (over 40) and color (dark brown) when: 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. 2021000469 2 1. On September 20, 2017, she became aware that her then direct supervisor (S1) had forged her name on an employee’s award. 2. On September 21, 2017, S1 notified her that she would be detailed out of her position because of performance. 3. On September 28, 2017, she became aware that S1 had alleged that she had bullied, intimidated, and threatened S1. 4. On October 2, 2017, she was detailed out of her position and moved to an office on a different floor, given “unclassified” duties, and assigned a new telephone number. On May 7, 2018, the Agency initially dismissed claims 1 - 3 for untimely EEO Counselor contact since Complainant failed to contact an EEO Counselor regarding the subject discrete acts until November 14, 2017, which was beyond the 45-day time limit set by the regulations. 29 C.F.R. § 1614.107(a)(2). Complainant did not object to this dismissal. Since Complainant does not contest the same on appeal, we need not address this matter in this decision. The Agency however considered these claims in relation to Complainant’s overall claim of harassment. After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Regarding claim 1, S1, the HR Director, indicated that an identified GS-4 intern was approved for the award for her higher-grade level performance and an Agency award computer system automatically added Complainant’s name since she had supervisory authority for the identified intern. Upon her request, Complainant’s name was subsequently removed from the intern’s award. Regarding claims 2, 3, and 4, S1 denied bullying, intimidating, or threatening Complainant as alleged. S1 indicated that Complainant was detailed out of her position in HR and moved to the FSA Chief of Staff Office because Complainant’s employees in HR and coworkers reported to management on numerous occasions concerning Complainant’s lack of communication or feedback or refusal thereto, lack of leadership, and inflexibility in working with and resolving issues with her staff. S1 indicated that in July 2017, while discussing Complainant’s lack of leadership, Complainant told S1 that an identified subordinate employee (E1) was “crazy” and she “hated [E1] and did not want to see [E1] anymore.” On July 25, 2017, an Alternative Dispute Resolution (ADR) meeting was held with Complainant and E1 and at the meeting, S1 informed E1 of Complainant’s perceptions about E1’s lack of performance which was reported by Complainant. On two occasions during the ADR, Complainant “jumped up, hit the table, leaned forward” and said she did not remember saying that to S1. 2021000469 3 After the ADR, Complainant told S1 that “I didn’t sign up for this shit;” “someone was fucking lying on her;” and “these employees are always lying on people.” S1 indicated that Complainant also told her that, “I was so mad that I lost it and threw my water bottle against the wall of my office.” S1 noted that on May 3, 2017 and July 12 and 24, 2017, S1 counseled Complainant regarding her lack of leadership, confidentiality, interpersonal communication, and inflexibility in working with and resolving issues with her staff. S1 indicated that she brought her concerns about Complainant’s conduct, described above, to Complainant’s second level supervisor (S2), the FSA Chief Administrative Officer. The record indicates that on September 21, 2017, Complainant’s coworker (C1), a HR Contractor, sent an email to S1 indicating that on August 12, 2017, Complainant accused C1, in a loud voice, of processing a personal action incorrectly in front of other staff members making C1 embarrassed; and Complainant was very aggressive and unprofessional to C1 on a number of other occasions. On September 26 and 29, 2017, Complainant’s coworker (C2), a HR Program Support Assistant, sent emails to S1 indicating that: two weeks ago, C2 heard Complainant yelling and screaming in Complainant’s office; in May 2017, Complainant asked C2 to complete “Web TA” training documents, and when C2 asked Complainant to meet with C2 to discuss the documents on several occasions thereafter, Complainant told C2 she was busy and did not meet with C2 as of September 2017; Complainant, walking with an identified HR Specialist, looked at C2 and started smirking at C2 which made C2 feel uncomfortable; and “there were days that I did not want to come to work because I did not think that [Complainant] liked me. I was fearful of what I thought she was capable of. I felt like she was going to try to ruin my career.” S1 indicated that on September 28, 2017, Complainant’s subordinate employee (E2) reported to S1 and S2 that Complainant talked to E2 about “having and using a gun in regard to [S1] on at least three separate instances.” Based on this report, management decided to conduct a security investigation on Complainant. S2 indicated that after she was informed of several employees’ allegations of physical threats and bullying behavior of Complainant, S2 contacted the Office of Management’s Chief of Physical Security and Law Enforcement for guidance and next steps to address safety and security concerns in HR Office. Based on the Office of Management’s guidance, S2 and the FSA Chief of Staff ultimately decided to detail Complainant from HR to the Chief of Staff’s supervision with new duties and a new telephone number pending the security investigation on Complainant. Complainant appealed from the Agency’s final decision. 2021000469 4 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 (EEO MD-110), 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"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or 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). 2021000469 5 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). 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., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Complainant’s name was automatically added to her intern’s award approval by an Agency’s award computer system because she was the intern’s supervisor. Upon her request, Complainant’s name was removed from the intern’s award. Complainant was detailed out of the HR office, i.e., away from HR employees and S1, to the Chief of Staff’s supervision pending an investigation by HR of employees’ complaints filed against Complainant that she created a hostile work environment. Further, E2 reported to S1 and S2 that Complainant made a threat against S1 “having and using a gun in regard to [S1] on at least three separate instances.” Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. The record indicates that Complainant subsequently transferred from the Agency to another federal Agency in June 2018, which is not at issue here. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. Even if we were to consider claims 1 - 3 as timely raised with an EEO Counselor, as discussed in this decision, we still find no discrimination on these claims as well. CONCLUSION Accordingly, the Agency’s final 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. 2021000469 6 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. 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. 2021000469 7 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 15, 2021 Date