[Redacted], Jovan S., Complainant,v.David Pekoske, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Feb 3, 2021

Appeal No. 2019005797 (E.E.O.C. Feb. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jovan S., Complainant, v. David Pekoske, Acting Secretary, Department of Homeland Security, Agency. Appeal No. 2019005797 Agency No. HS-CIS-00679-2018 DECISION On December 15, 2020, 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 August 26, 2019, 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. ISSUE PRESENTED Whether Complainant has proven, by a preponderance of the evidence, that the agency subjected her to various incidents of alleged harassment based on her race, color, sex and in reprisal for her prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Manager, GS-0340-15, at the Agency’s Office of Security and Integrity facility in Manassas, Virginia. On March 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 2019005797 2 1. Between July 2017 and March 15, 2018, Complainant was subjected to a hostile work environment which was manifested by management refusing to provide her information regarding work processes; 2. The agency: assigned an employee to job shadow her without specifying to the employee what job shadowing entailed; 3. Refused to clarify the role of job shadowing to the employee; 4. Issued Complainant a letter of counseling; 5. Failed to grant her request for reassignment; and 6. Blocked her access to view her supervisor’s calendar. 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. ANALYSIS AND FINDINGS Standard of Review 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”). Complainant, employed as a Program Manager, GS-0340-15, contends that she was subjected to a hostile work environment based on her race, color, sex, and in reprisal for her EEO activity. She stated that she was a new employee responsible for producing a newsletter for the Agency. Shortly after her appointment, a coworker began sending Complainant documents with “short” and “conflicting” deadlines for review and approval. In light of these deadlines, Complainant requested the Agency’s Standard Operating Procedures (SOP) for the Agency’s newsletter. Although Complainant’s co-workers stated that the SOPs existed, Complainant was unable to find them, nor was she provided with them. She considered them to be essential for her progress. Complainant filed an EEO Complaint. 2019005797 3 Complainant’s Supervisor (S1) (Asian) averred that she was employed by the Agency as Chief of Staff, GS-15, Office of Security & Integrity. She explained that she became aware that Complainant considered the concerns she listed in her complaint a matter of EEO activity, in January of 2018 when she received the notice of the informal inquiry into the EEO Complaint. She noted that prior to that time she had understood the situation only in terms of personality conflicts and miscommunication between co-workers. Complainant’s second line supervisor (S2) (Male; American Indian) stated he had never personally met Complainant prior to the incidents in this matter. He said he became aware of her race and color, between July 2017 and March 2018, but did not recall the exact date. He said he became aware of Complainant’s sex because of her female gender name. He stated he became aware of her EEO activity on November 16, 2017, when she sent an email advising him that she was being harassed by a co-worker. Subsequently, per request by Complainant, S1 responded to Complainant, informing her that there were some workflow charts that she considered to be the Standard Operating Procedures. Complainant’s Supervisor also stated that the charts and any materials from a coworker may no longer be the evolving agency processes. Complainant’s Supervisor also held phone conversations and meetings with Complainant and a co-worker in a continuous effort to discuss roles and processes. The record reflects that there was an effort to keep Complainant and others current on roles and processes. S1 emphasized that she was not seeking to keep projects, communications and any SOP from them. Nevertheless, Complainant was not content with the process. In addition to the Standard Operating Procedures issue, Complainant also complained about the Agency instituting what was termed “Job Shadowing.” Complainant was assigned to other employees to address a practice the Agency used to apparently tutor employees. Complainant appeared to regard this practice as something she did not like or believed she was being surveilled. The Agency viewed the practice as an opportunity for an employee to obtain advice from another employee assigned to assist or mentor an employee who needs or request additional assistance with work related issues. Complainant viewed it as a form of harassment or reprisal for prior protected activity and filed an EEO Complaint. Harassment 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). 2019005797 4 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). Our decisions have made it clear that the anti-discrimination laws are not a "general civility code" and that the conduct complained of must be so objectively offensive as to alter the terms and conditions of one's employment. Complainant has failed to describe any such conduct. Instead, what Complainant describes are routine work assignments, instructions, and admonishments that do not rise to the level of discriminatory harassment. DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000); Wolf v. U.S. Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); and Bennett v. Dep’t of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). Therefore, we conclude that Complainant has not established her claims of discrimination and that her requested relief is not granted. Reprisal Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). For a reprisal claim, a complainant may establish a prima facie case by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In this case, the Commission finds that Complainant has not presented evidence that would raise an inference of retaliatory motive (e.g., a similarly situated employee who had not engaged in protected EEO activity was treated more favorably; Complainant was subjected to adverse treatment shortly following prior EEO activity, etc.). However, assuming that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate nondiscriminatory reasons for the allegations that she failed to prove to be pretexts for discrimination. Complainant, after asking, was told that a Standard Operating Procedures Guideline was available. Complainant requested a copy of the Agency’s Standard Operating Procedures. Complainant’s supervisor and co-workers looked but could not locate those procedures. Complainant’s supervisor advised Complainant of what she recalled of the procedures, and she instructed other employees that she identified as “Shadow Workers” to stay in touch with Complainant and guide her when she requested assistance. The Chief of Staff issued a Memorandum of Counseling to Complainant because a November 13, 2017 email from Complainant was inappropriate and disrespectful to a coworker and it was not consistent with the competencies for a GS-15 with respect to Communication and Teamwork and Cooperation. 2019005797 5 The Deputy Chief Security Officer stated that he did not approve Complainant's request for reassignment because Complainant did not demonstrate that she was being harassed or that the Chief of Staff was being unresponsive to Complainant's communications. He stated the only basis he could find for Complainant's request was that she wanted a different job. The Chief of Staff stated that she did not block access to her calendar, but because Complainant mentioned to her specific meeting information that she had been able to access that she should not have had access to, her permissions were appropriately adjusted. We find no basis for a finding that the Agency discriminated against Complainant with respect to any of the allegations on any of the bases described in her complaint. 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 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. 2019005797 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. 2019005797 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 February 3, 2021 Date