[Redacted], Jeannie T., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Apr 14, 2021

Appeal No. 2020001259 (E.E.O.C. Apr. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020001259 Hearing No. 410-2019-00195X Agency No. 2018-27693-FHWA-02 DECISION On November 22, 2019, 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 October 23, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Attorney, GS-905-15, at the Agency’s Field Legal Services - South Division facility in Atlanta, Georgia. On January 21, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment and harassment (non-sexual) on the bases of race (African-American), color (Black) and sex (female) when, on September 22, 2017, the following occurred: 1. she received a verbal warning from the Acting Chief Counsel; 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. 2020001259 2 2. she was issued a Memorandum of Counseling by the Acting Chief Counsel; and 3. she was accused of inappropriate behavior and treatment toward staff by the Acting Chief Counsel. The Agency accepted the matter as a claim of discriminatory harassment and conducted an investigation, which produced the following pertinent facts. On September 22, 2017, the Acting Chief Counsel traveled to Atlanta to meet with Complainant and, during this meeting, the Acting Chief Counsel told Complainant that members of Complainant’s staff had raised concerns about Complainant’s behavior and actions towards staff. This alleged behavior and actions included that Complainant frequently demeaned and berated employees in front of their peers; frequently yelled at them over insignificant matters, such as failure to turn of lights or clean the microwave; that she made an inappropriate comment about a working mother, criticizing her for needing to take a break to pump her breast milk; refusing to approve leave in advance; failing to communicate to employees when she planned to take leave; threatening to withhold promotions because employees were “not ready” but failing to provide feedback so they could take the steps to become ready; and failing to include critical job elements in employee performance plans. The Acting Chief Counsel warned her that this was creating a toxic and hostile environment in the office. The Acting Chief Counsel attested that she did not consider the discussion on September 22, 2017 to be a verbal warning. She attested that she noticed that the way Complainant spoke with her and others within Agency Headquarters was, at times, abrasive and borderline unprofessional. She attested that, most of the time, she gave Complainant the benefit of the doubt, assuming she was having a bad day, but on some occasions, she called Complainant to express her concerns about the way she had spoken to her. The Acting Chief Counsel attested that she kept the conversations collegial and did not keep notes because, at that time, she did not see the need and she was hopeful that Complainant would adjust her behavior. The Acting Chief Counsel also attested that in July and August 2017, she received complaints from employees in Complainant’s office, as noted above. She provided details of the employees’ reports, including complaints that Complainant held the staff to a different standard than she held herself with respect to leave and telework, as well as reports of Complainant yelling at and making demeaning and berating comments to staff during meetings. The employee reports included that Complainant would delay approval of annual leave for staff but would not inform staff that she was taking leave until “she is walking out the door” and, with respect to telework, Complainant would notify staff when she planned on teleworking at the last minute but would often deny staff last minute telework requests. The Acting Chief attested that one employee reported feeling like she was “walking on eggshells” and being subject to “mind games.” 2020001259 3 The Acting Chief Counsel attested that, since this was the first time she was hearing about the extent of these issues in the office, she did not think taking a formal disciplinary action against Complainant was appropriate and, instead, she drafted a Memorandum of Counseling, as this format provided the opportunity to describe clearly the concerns that were brought to her, highlight the positive aspects of Complainant’s work, and propose a plan that she thought would help resolve the problems within the office. Complainant attested that the series of events along with the names and timeframes that led to the Memorandum of Counseling were not provided to her. She noted that her annual review, which was conducted on July 25, 2017, did not include the concerns outlined in the Memorandum. Complainant denied that she yelled at, demeaned, and/or berated staff or other Agency employees. She attested that she recalled two staff meetings during which she was openly direct about work matters. Several employees provided testimony generally indicating that they witnessed Complainant’s getting angry with employees and verbally admonishing them, raising her voice, reprimanding them, etc. in meetings, in front of other employees. A Memorandum of Counseling (Memorandum) from the Acting Chief Counsel, dated September 22, 2017 and addressed to Complainant, indicates that the Memorandum was a written counseling and corrective action plan based on concerns about Complainant’s inappropriate treatment of and behavior towards staff and co-workers. The Memorandum indicates that the Acting Chief Counsel was contacted by several employees about Complainant’s behavior and actions and she was informed that there was a toxic and hostile environment in Field Legal Services-South due to Complainant’s behavior and actions. The Memorandum indicates concerns including the following: incivility; gender-specific comments, including comments regarding working mothers; telework, including Complainant being extremely hard to reach when she is teleworking, not notifying staff until “the last minute” that she plans to telework, and being difficult with employees who “at the last minute” request telework; leave, including refusing to approve leave in advance but not communicating to employees when she plans to take leave; delayed promotions, including because employees are “not ready” without feedback; and failure to accurately reflect work duties in an individual’s performance plan. The Memorandum provides that Complainant should take corrective actions, including the following: take responsibility, including specific steps to rebuild trust and confidence with staff; engage in civil behavior in accordance with Agency policies on civility and workplace harassment; give feedback on performance, including that any negative feedback should be job- related and given in a private and respectful manner with encouragement and an offer of guidance and assistance, without admonishing employees for asking questions; attend training, including at least two courses from a list from the American Management Association within six months of the Memorandum; comply with Federal law and Agency, EEOC, and OPM policies regarding nursing mothers, including no inappropriate gender-based comments; comply with Agency telework procedures; approve leave in a timely fashion; provide specific written feedback when denying or deferring promotions, to explain what the employee can do to qualify 2020001259 4 for the next grade or a career ladder promotion; and ensure that individual performance plans reflect work assignments. The Memorandum indicates that retaliation against staff will not be tolerated, a copy of the Memorandum will not be placed in Complainant’s electronic personnel folder, and the Memorandum is not a disciplinary action. However, the Memorandum indicates that it serves notice that additional instances of inappropriate conduct and/or failure to comply with the expectations and corrective action play may result in administrative action up to and including removal from Federal service. A Memorandum in Response (Response) to the September 22, 2017 Memorandum, dated October 4, 2017, from Complainant argues that the Memorandum constitutes an Informal Disciplinary Written Warning under Agency policies. The Response also generally indicates that Complainant denied the allegations contained in the Memorandum but would comply with the corrective actions. Complainant attested that she believed that an analysis of other Assistant Chief Counsels not in her protected class and similarly situated would show that their experiences regarding staff complaints and concerns were not addressed in a similar manner. 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). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision by summary judgment on September 27, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that summary judgment was inappropriate, asserting that the administrative record was incomplete, she was improperly denied discovery, and the AJ made impermissible factual determinations. She also submits statements from two former Agency employees (African-American, Black, and female) who reported to supervisors (both not African-American) other than Complainant. These individuals generally alleged that African-American employees are treated differently from the Caucasian employees. One statement notes differences in telework, denial of leave, harassment, bullying, and being treated as “second-class citizens” and indicates that, while the employee did not report the matter to the Acting Chief Counsel, she believed the Acting Chief Counsel was aware of her former supervisor’s behavior. The other statement describes being subject to derogatory, demeaning, and/or disrespectful communications and indicates that the employee conveyed to her former supervisor her concerns about the supervisor’s communications and, in accordance with her request, was reassigned. In response, the Agency argues that the Commission should affirm its final decision because there is no evidence that the Agency’s legitimate, non-discriminatory reasons for its actions were a pretext for discrimination. Regarding Complainant’s newly submitted affidavits, the Agency argues that they are distinguishable from the instant case. 2020001259 5 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Harassment/Hostile Work Environment To establish a claim of hostile environment harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, a complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her position would have found the conduct to be hostile or abusive. She must also prove that the conduct was taken because of a protected basis -- in this case, her race, color, and/or sex. 2020001259 6 Only if she establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Here, Complainant alleges that she was subject to discriminatory harassment when the Acting Chief Counsel, her supervisor, gave her a verbal warning, issued a Memorandum, and accused her of inappropriate behavior and treatment towards staff. The record shows that the Acting Chief Counsel met with Complainant in response to multiple reports from employees of inappropriate work behavior. The Acting Chief Counsel’s concerns as expressed during the meeting and in the Memorandum reflected her observations and the reports of multiple employees. Here, the AJ determined that her decision to meet with Complainant and counsel her was a matter of managerial discretion that is warranted under these circumstances. Without evidence of an unlawful motive, we have found that similar employee disagreements with managerial decisions do not amount to unlawful harassment. See e.g., Azucena A. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181293 (July 9, 2019) (finding that a complainant’s allegations relating to disagreements about managerial decisions, without evidence of an unlawful animus, did not amount to unlawful harassment); see also Morton P. v. Dep’t of Agriculture, EEOC Appeal No. 2019002486 (December 26, 2019). We recognize that Complainant has offered two affidavits attesting to employees’ situations with other supervisors that were addressed or resolved differently. However, we agree with the Agency that these situations are distinguishable from the instant case. In one case, the employee acknowledged that she did not convey her concerns to the Acting Chief Counsel. This is distinguishable from the instant case where the Acting Chief Counsel acted in response to not only her own observations of Complainant’s behavior, but also to reports from multiple employees. In the other case, the record shows that this employee’s allegations towards her supervisor concerned only herself, rather than the complaints of multiple employees like the situation with Complainant. This employee requested a transfer, which the Acting Chief Counsel subsequently granted. Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the allegation that Complainant’s race, color, and/or sex played any role in the incidents at issue. As such, we cannot find that Complainant was subjected to discriminatory harassment in violation of Title VII. We also note that Complainant contends that summary judgment was improper because further discovery was necessary. Like the AJ, we are unpersuaded because the documents she alleges are necessary to complete the record are not material to the resolution of this case. While Complainant seeks documentation of the comparative treatment of the two supervisors discussed above, we agree with the AJ that such information is unnecessary because the record already contains sufficient information to show that these potential comparators were not similarly situated to Complainant. 2020001259 7 Disparate Treatment 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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, non-discriminatory 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). We agree with the AJ’s determination that Complainant’s allegations give rise to a claim of disparate treatment, particularly with respect to the issuance of the Memorandum which contained language indicating that failure to comply with the corrective actions could result in additional action, up to and including removal. That said, even if we assume arguendo that Complainant established a prima facie case of discrimination, we find the Agency has articulated legitimate, non-discriminatory reasons for its actions. As discussed above, the record shows that the Acting Chief Counsel’s actions were in response to her observations and employee complaints about Complainant’s behavior. We reiterate that we find the Acting Chief Counsel’s actions were warranted under these circumstances. We recognize that Complainant argues that the Acting Chief Counsel treated her differently from other supervisors who had problems with employees. However, as discussed above, the record does not contain evidence suggesting the Acting Chief Counsel’s actions were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action. 2020001259 8 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). 2020001259 9 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 April 14, 2021 Date