[Redacted], Karen S., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2020004326 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004326 Hearing No. 570-2019-01475X Agency Nos. HS-TSA-02250-2018; HS-TSA-01188-2019 DECISION On July 24, 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 June 26, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as Supervisory Unit Chief, K-Band, in the Agency’s Office of Professional Responsibility in Arlington, Virginia. On October 15, 2018, Complainant filed an EEO complaint (Agency No. HS-TSA-02250-2018) alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity 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. 2020004326 2 1. on or about October 26, 2017, management sent Complainant an inappropriate email demanding Complainant explain her reason for giving low scores to various Office of Professional Responsibility (OPR) employees; 2. on or about November 8 and 21, 2017, management met with Complainant to present Complainant with audit results of a year and half of audits performed on a peer’s work without Complainant’s knowledge, and management insisted Complainant reprimand the employee; 3. on or about November 28, 2017, management reprimanded Complainant for the way she determined monetary awards to various OPR employees; 4. in or around November 2017, management directed Complainant to reprimand a peer based on the results of an audit performed by another management official who was not the peer’s supervisor; 5. in or around November 2017, management reprimanded Complainant for her lack of performance with determining monetary awards; 6. between December 2017 and April 2018, management changed OPR processes or procedures, and imposed new processes and procedures on Complainant’s subordinates without informing Complainant; 7. between December 2017 and July 2018, management ignored Complainant’s emails regarding work-related projects; 8. from January 2018 and July 2018, management failed to respond to Complainant’s work-related emails regarding office procedures; 9. between January 2018, and March 2018, management refused to assist, support, participate, or encourage subordinates in OPR; 10. between January 2018 and May 2018, management accessed Complainant’s and Complainant’s subordinates’ case work in the Human Resources (HR) database, and altered information without Complainant’s knowledge or permission; 11. in or around February 2018, management assigned work to Complainant’s team without informing her in advance; 12. on or about February 13, 2018, management scrutinized the arrival of Complainant’s subordinate employee; 13. on or about February 14, 2018, management reassigned cases from Complainant’s team without her knowledge; 14. on or about February 15, 2018, management ignored Complainant’s meeting invitation; 15. on or about February 15, 2018, management withheld information from Complainant regarding casework; 16. on or about February 16, 2018, management met with Complainant and berated and reprimanded her to deter her from reprimanding a subordinate; 17. on or about February 20, 2018, management failed to review the work of Complainant’s subordinate employee, which had been submitted to management on February 7, 2018; 18. on or about February 20, 2018, management failed to provide Complainant’s subordinate employee work-related information needed to perform her job; 2020004326 3 19. on or about February 23, 2018, management assigned work to Complainant’s employee, but Complainant was not notified until February 26, 2018; 20. on or about February 26, 2018, management created a spreadsheet to track Complainant’s work and the work of Complainant’s subordinates; 21. on or about February 26, 2018, management failed to respond to Complainant’s work-related inquiry regarding office processes and procedures; 22. on or about February 26, 2018, management excluded Complainant from a meeting on a project; 23. in or around March 2018, management made revisions on a case Complainant was working on without her knowledge; 24. in or around March 2018, management checked on Complainant’s subordinates’ work without her knowledge; 25. in or around March 2018, management sent out new instructions on a new process, and refused to respond to an email inquiry about the new process; 26. on or about March 26, 2018, management failed to show up to support Complainant in a team project assigned to the OPR by the Agency’s Office of Civil Rights and Liberties as part of an Agency-wide diversity initiative, which Complainant developed and produced on behalf of OPR; 27. on or about March 2019, management failed to respond to Complainant’s work- related inquiry regarding office processes and procedures; 28. in or around April 2018, through May 2018, management informed Complainant that he was aware of the written complaint she submitted to the Office of Inspections (OOI) and that the complaint would not be investigated; 29. in or around April 2018, management informed Complainant that her harassment complaint would be handled internally by management; 30. on or about April 6, 2018, Complainant submitted a written complaint to the Mission Support Director for forwarding to the OOI; 31. on or about April 12, 2018, Complainant informed management she was having difficulty supervising a subordinate due to the inappropriate relationship between the subordinate and management; 32. on or about April 25, 2018 through about May 7, 2018, following the death of Complainant’s father, management continued to send her work-related emails regarding the assignment of cases to her team; 33. on or about April 26, 2018, management failed to respond to Complainant’s work- related inquiry regarding office processes and procedures; 34. between May and October 2018, management failed to inform Complainant that new cases were awaiting Complainant’s assignment to her subordinate; 35. between May and July 2018, management did not respond to Complainant’s request for assistance to review case managers’ work; 36. in or around May 2018, through June 2018, management significantly increased Complainant’s workload; 37. on or about May 8, 2018, management failed to assign case work to Complainant’s subordinates; 2020004326 4 38. on or about May 10, 2018, management allowed an unauthorized employee to sit in on a Federal Air Marshal Service, OOI, and Personal Security case meeting; 39. between May 15, 2018 through July 2018, management assigned advisory services casework to Complainant, increasing Complainant’s caseload without her advance notice or consent; 40. on or about May 24, 2018, management failed to respond to Complainant’s subordinate’s work-related inquiry; 41. on or about May 29, 2018, during a meeting, management behaved in an aggressive and intimidating manner toward another employee; 42. between June 2018 and July 26, 2018, management assigned Complainant to Advisory Services cases without checking to see if she could work the cases; 43. in or around July 2018, management instructed Complainant that she should not keep an account of her complaint of a hostile work environment; 44. on or about July 6, 2018, management failed to review Complainant’s subordinate employee’s case work that was submitted on May 29, 2018; 45. on or about July 19, 2018, management did not respond to Complainant’s work- related inquiries regarding case closure procedures; 46. on or about July 20, 2018, Complainant complained to management through email about the hostile work environment in OPR; 47. on or about July 20, 2018, management did not respond to Complainant’s complaint sent by email; 48. on or about July 20, 2018, management provided Complainant with incomplete information regarding a case, preventing her from performing her job duties; 49. on or about July 20, 2018, management declined to answer a work-related inquiry; 50. on or about July 23, 2018, management directed Complainant not to send any more emails regarding incidents of a hostile work environment; 51. on or about July 26, 2018, management admonished Complainant for sending an email to management documenting incidents of harassment; 52. on or about July 26, 2018, management intimidated Complainant during a group meeting, when he made reference to Complainant’s complaint of harassment and characterized Complainant’s complaint to the group to deter others from filing future complaints; 53. between August 13, 2018 and August 15, 2018, a management official refused to return Complainant’s call regarding case work; 54. on or about August 21, 2018, management raised an issue during a group meeting about Complainant’s case work, without speaking to Complainant first, in an attempt to publicly embarrass and discredit Complainant; 55. on or about September 6 through September 10, 2018, management failed to disclose critical information to Complainant prior to a meeting with the Agency Administrator for a Congressional hearing in an attempt to discredit Complainant’s competence and credibility; and 56. on or about September 27, 2018, management filed an anti-harassment complaint against Complainant. 2020004326 5 Complainant filed a second EEO complaint (Agency No. HS-TSA-01188-2019) alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race, sex, and in reprisal for prior protected EEO activity when: 57. on or about November 1, 2018, Complainant was forced by management to leave the Agency because she could no longer tolerate the hostile working conditions of being retaliated against for protesting discrimination.2 When asked by the investigator why she believed that her hostile work environment is because of her race, sex, or in reprisal for engaging in protected EEO activity, Complainant repeatedly asserted her belief that prior assistant administrators were not subjected to similar treatment, including being challenged or required to explain their actions. For example, in Claim (1), Complainant asserted that no other OPR supervisor was required to provide an itemized explanation for why an employee did not receive a perfect performance rating. In Claim (2), Complainant claimed that none of three prior assistant administrators, whom she identified as a Caucasian woman, Caucasian man, and Latino man, were presented with an audit of another OPR supervisor’s work, and Complainant contended that the audit was a misuse of the Agency’s HRAccess database. Complainant asserted that one of the Unit Chiefs (UC1) reprimanded her in Claim (3) and that the Director, Mission Support for Professional Responsibility (DMS) reprimanded her in Claim (5). UC1 asserted that, as a Unit Chief, she does not have the authority or ability to reprimand any Assistant Administrator. UC1 added, in response to Claim (1), that she frequently discussed her performance ratings with prior Assistant Administrators and used the discussions as opportunities to improve her performance. DMS noted that Complainant supervised her until December 2017, when the two became colleagues. UC1 also responded to Complainant’s allegations of an improper audit. UC1 said that the audit was a spreadsheet that was put together to “improve inconsistencies and re-emphasize the process.” UC1 said that the spreadsheet was created for the benefit of the department as a whole. 2 Agency No. HS-TSA-01888-2019 was processed as a mixed-case complaint. Complainant subsequently filed an appeal regarding the claim with the Merit Systems Protection Board (MSPB) which issued an initial decision dismissing the matter for lack of jurisdiction. The record reveals that the Agency recommenced processing the complaint and Complainant later requested a hearing before an EEOC Administrative Judge. We note that the Agency analyzed the constructive discharge claim in its final agency decision, but erroneously provided appeal rights regarding the claim to the Merit Systems Protection Board (MSPB). Based on the specific circumstances present, we find that the error was harmless as the claim is properly before the Commission for adjudication. 2020004326 6 An Attorney-Advisor (AA1) 3 involved in developing the spreadsheet said that a Unit Chief had made some decisions that were inconsistent with the other Unit Chiefs, and that AA1 and UC1 wanted to bring it to Complainant’s attention so that she could take action if she wanted. AA1 denied Complainant’s accusation that he insisted on action. AA1 noted that Complainant was the highest-ranking management official in the office. The record reveals that several supervisory unit chiefs in OPR were given the opportunity to act as Director of OPR. During each of their tenure as Acting Director, the assistant administrators implemented different office processes and procedures that applied office-wide. Complainant claimed that the varying processes and procedures, as alleged in Claims (6), (8), (21), (25), (27), (33), and (45) constituted a hostile work environment against her. In several of her claims, Complainant alleged that AA1 manipulated case assignments and workloads and excluded Complainant from meetings to favor a Case Manager (CM1) due to a personal relationship between the two individuals. As a result, Complainant and African American female case managers were disadvantaged. In Claim (16), Complainant claimed that AA1 reassigned a case from one of her subordinates to CM1 and then completed the case. Complainant argued that the reassignment was improper, and when she asked CM1 for information about the case, CM1 was less than forthcoming. Complainant said she informed AA1 that she intended to reprimand CM1 for his behavior, but AA1 directed her not to do so. In response, AA1 denied the allegation, including that Complainant wanted to discipline CM1. AA1 added that any such discipline would have been improper since CM1 did nothing more than volunteer to help the office issue an overdue proposal. The Director of Professional Responsibility (Director) averred that he was aware that, while there was not an inappropriate relationship, there was a perception that AA1 was favoring CM1. Accordingly, he spoke with AA1 and then reassigned CM1 to another supervisor. In Claims (17) and (18), Complainant broadly alleged that management failed to review or help her subordinates’ work. Additionally, in several claims, Complainant contended that Director took action with respect to her subordinates without her knowledge or consent. However, in Claim (19), Complainant conceded that it was not unusual for the Director to assign work to her subordinates but takes exception in the type of work that was assigned in this matter. A number of Complainant’s allegations revolve around her communications with AA1 regarding her workload, and whether AA1 appropriately informed her of case assignments, assigned cases to her subordinates, or communicated with her or her subordinates on the procedures applicable to the cases. AA1 broadly denied these allegations and noted that he had no supervisory authority over Complainant. Director added that UC1 was detailed at this time, which required her workload to be picked up by other members of the department. 3 AA1 testified that Complainant was his supervisor until December 2017, at which point they became peers. 2020004326 7 Therefore, Complainant’s workload increased along with the remaining Unit Chiefs. Director said he undertook efforts to balance the increased workload among Complainant and the Unit Chiefs. Complainant contended that she reported the harassment several times to Director but he did not do anything about it. Director denied that Complainant was being subjected to harassment. Rather, Director insisted that “[t]here was poor dynamics in the office and [he] was working to have staff members openly communicate with each other.” Director added that OOI made the decision not to investigate Complainant’s complaint. According to Director, OOI did not find any actionable allegations of misconduct. In Claim (43), Complainant alleged that Director directed her not to send complaints by email and would refuse to respond to her emailed complaints. Rather, Director would call her or talk to her in person; Complainant asserted that Director believed her concerns were better held as a discussion. According to Complainant, Director believed the problems constituted a communication issue, not harassment. Complainant further claimed that Director retaliated against her by setting up a meeting among the Unit Chiefs to “clear up misunderstandings and miscommunication issues.” Director denied the allegation in Claim (43). Rather, Director told Complainant to communicate with AA1 “on a professional level with courtesy and tact. There was no communication between them.” Director denied ever telling a manager not to report harassment. Director asserted that this was a problem among the Unit Chiefs, not just between Complainant and AA1, which is why he held a meeting with all of the Unit Chiefs and Complainant. According to Director, he “told them as leaders [he] expected more from them and they needed to find a way to work together.” Complainant identifies AA1 as the employee who filed a harassment complaint against her. In his affidavit, AA1 says that Complainant was harassing her with emails and questions and that it had become a hostile work environment for him. At the conclusion of the investigation, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings on both complaints. The AJ consolidated the complaints for processing, but Complainant subsequently withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency concluded that Complainant failed to show that she was subjected to conduct sufficiently severe or pervasive to constitute a hostile work environment. In addition, the Agency determined that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. The instant appeal followed. 2020004326 8 CONTENTIONS ON APPEAL On appeal, Complainant criticizes the Agency’s final decision and suggests that the Agency did not consider the entirety of the complaint file. Complainant acknowledges that her claims, when viewed individually, may not appear to be hostile, but argues that viewed collectively, the conduct demonstrates a hostile work environment. Complainant argues that UC1 and AA1 believed she was not qualified to be an Assistant Administrator but did not question any other employee’s qualifications. Complainant then reiterates her allegations and why she believes the allegations collectively rise to a hostile work environment. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Hostile Work Environment To establish a hostile work environment claim, 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 (Mar. 8, 1994). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2020004326 9 In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination or reprisal. Accordingly, we find that Complainant has not shown that she was subjected to discrimination, reprisal, or a hostile work environment. Constructive Discharge 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). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, we find that the Agency had legitimate, nondiscriminatory reasons for its actions and Complainant has not established that a reasonable person in her position would have found these working conditions intolerable. Furthermore, the record is devoid of evidence that any responsible management official was motivated by discriminatory or retaliatory animus with respect to the working conditions at issue. Accordingly, we find that Complainant failed to prove her constructive discharge claim as alleged. 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 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: 2020004326 10 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). 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. 2020004326 11 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 December 23, 2021 Date