[Redacted], Karma S., 1 Complainant,v.Isabel Casillas Guzman, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021003708 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karma S.,1 Complainant, v. Isabel Casillas Guzman, Administrator, Small Business Administration, Agency. Appeal No. 2021003708 Agency No. 06-14-041 DECISION On June 9, 2021, 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 May 13, 2021, 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 The issue presented herein is whether the Agency, in its Final Agency Decision (FAD), correctly concluded that Complainant was not subjected to discriminatory harassment that created a hostile work environment on the bases of sex and reprisal, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Economic Development Specialist, GS-1101-13, at the Agency’s District Office in Pittsburgh, Pennsylvania. 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. 2021003708 2 The Agency advertised the Pittsburgh District Director, GS-340-15 position in Job Announcement Number 14 100-CS for Merit and Delegated Examining Unit (DEU) candidates. The vacancy announcement specifically required that candidates must have 52 weeks’ time-in- grade at the GS-14 level in order to be eligible for the role. See Report of Investigation (ROI), p. 297. Complainant applied for the position. However, Complainant was a GS-13, and had spent her entire tenure at the Agency as a GS-13. ROI pp. 304-305, 322-326. Therefore, Complainant was deemed ineligible due to not meeting the time-in-grade requirement. Eight other candidates (all male with no prior EEO activity) were similarly determined to be ineligible. ROI, p. 12. Complainant contends that her prior work experience at a different Agency, specifically the U.S. Postal Service (USPS), was equivalent to the GS-14 level and qualified her for the time-in-grade requirement. However, the Human Resources (HR) Specialist responsible for making eligibility determinations for the vacancy determined that Complainant’s work at the USPS was not at a GS-14 equivalent level. The HR Specialist noted that the USPS was not within the GS pay system. The HR Specialist explained that in comparing the two pay scales, Complainant's highest salary at the Post Office correlated to a 13 on the GS pay scale. The record reflected that the HR Specialist who prepared the vacancy announcement and made eligibility determinations for the position was located in Denver, Colorado. The HR Specialist did not know Complainant and was unaware of any prior EEO activity involving Complainant. On October 14, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal (protected opposition to unlawful employment discrimination) (ROI, Tab C1, p. 39) under Title VII of the Civil Rights Act of 1964 when: 1. on June 25, 2014, Complainant received a notice of non-selection stating that she was ineligible to apply for the District Director, GS-340-15, Pittsburgh, PA, position under Job Vacancy Announcement Number 14-100-CS; and 2. on May 30, 2014, management made comments regarding Complainant’s initial hire, in that Complainant’s resume was so atrocious that an unnamed management official interviewed other applicants before having no choice but to hire Complainant, which created a hostile work environment. The Agency accepted Claim 1 for investigation but dismissed Claim 2 for failure to state a claim, pursuant to 29 CFR §1614.107(a)(1). Following its investigation of Claim 1, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and a notice of her right to request either a hearing before an EEOC Administrative Judge (AJ) or an immediate FAD. 2021003708 3 When the Agency did not receive notice of Complainant’s request for a hearing with the time frame provided in 29 C.F.R. § 1614.108(f), it issued a FAD finding no discrimination, pursuant to 29 C.F.R. § 1614.110(b). This appeal followed.2 CONTENTIONS ON APPEAL On appeal, Complainant reiterates her allegations and argues that the Agency erred in dismissing her hostile work environment claim. Complainant indicates that the events which created the hostile work environment culminated in her “exclusion” from the opportunity to compete for the District Director vacancy. Complainant alleges that the Agency intentionally manipulated its selection process by posting the Director position as a GS-15 instead of a 14/15, as was customary at the time. Complainant argues that the Agency did not accurately identify the GS equivalent of her USPS position in order to prevent her from qualifying for the District Director vacancy. Complainant contends that the investigation was not independently conducted, and that the Agency controlled the Investigator. Complainant asserts that the Investigator told her that the Agency had provided the questions and that the Investigator was not permitted to ask additional questions. Complainant argues that the investigation was incomplete and otherwise deficient. She requests that the FAD be reversed. On appeal, the Agency reiterates its decision. According to the Agency, the Investigator interviewed Complainant and other witnesses who were directly involved in, possessed personal knowledge of, or otherwise had documentary evidence related to the alleged discriminatory conduct. The Agency contends that Complainant provided no corroborating evidence that the Investigation was not independent. The Agency argues that the four witnesses identified by Complainant were not interviewed because they were not involved with the selection, and testimony regarding AO’s conduct would have been duplicative. The Agency states that the decision to advertise the position of District Director at a GS-15 level was to attract the best candidates. It was not, argues the Agency, a manipulation of the process to single out and adversely affect Complainant. The Agency requests that the FAD be upheld. 2 On appeal, Complainant argues that she did request a hearing, but the Agency failed to act on that request. The Agency decision states that Complainant was provided with a copy of the ROI and her right to request a hearing on April 16, 2015. Complainant does not dispute receiving the notice informing her that a response was due within 30 days. On appeal, Complainant has submitted a copy of a hearing request dated June 3, 2015. The request was simultaneously sent to the EEOC’s area office in Pittsburgh, Pennsylvania. The request was untimely. 2021003708 4 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”). ANALYSIS AND FINDINGS Dismissal for Failure to State a Claim - Claim 2 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Here, Complainant alleged that she was harassed when an unnamed management official commented that her resume was “atrocious”. We find that these comments lack the requisite severity or pervasiveness as to rise to the level of harassment. If Complainant objected to how the claim was framed by the Agency in its letter of acceptance/dismissal, she should have contested the framing at that time, prior to the investigation. See Owen W. v. Dep’t of Veterans Affairs, Agency Request No. 2020002215 (Jun. 2, 2020) (affirming initial decision not to review dismissed claim “because the record clearly shows that Complainant did not challenge the Agency’s framing of his complaint.”) Therefore, we find that the Agency was correct in dismissing Claim 2 for failure to state a claim. Investigation Inadequacies It is the Commission’s position that, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. Equal Employment Opportunity Management Directive for 29 CFR Part 1614 (EEO MD-110), at Ch. 9, § VI.A. (Aug. 5, 2015). See also Godsey v. Dept. of the Treasury, EEOC Appeal No. 01A24901 (Mar. 5, 2003). We find no such showing in the instant complaint. On appeal, Complainant asserts that the investigator failed to contact four witnesses she had identified, including the AO. She also asserts that the investigation into her case was not independent of the Agency. However, Complainant fails to describe how the additional testimony from those witnesses would demonstrate that discrimination occurred. Besides, the record indicates that the attempts at reaching the AO were unsuccessful. Finally, the record is devoid of any evidence that the investigation into Complainant’s case was not independent, nor is there any indication that it was insufficient or incomplete. 2021003708 5 Discrimination Based on Sex and Reprisal - Claim 1 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). First and foremost, Complainant fails to establish a prima facie case. Aside from the fact that the HR Specialist posting the vacancy and making the determinations had no knowledge of Complainant or her prior EEO activity, eight other candidates - all male with no prior EEO activity - were similarly determined to be ineligible for the vacancy at issue. Where Complainant cannot establish that they were subjected to disparate treatment by the Agency as compared to persons not in their protected group, Complainant cannot establish a prima facie case of discrimination “on any basis.” Shannon v. USPS, EEOC Appeal No. 01952093 at *1 (April 9, 1997); see also, e.g., Delgado v. USPS, EEOC Appeal No. 01943890 (June 20, 1995); Upshaw v. USPS, EEOC Appeal No 01976297 (Feb. 1, 2000). Assuming, arguendo, that Complainant established a prima facie case - which she has not - the Agency has articulated a legitimate, nondiscriminatory reason for its actions and Complainant has failed to demonstrate pretext. Here, management explained that Complainant was determined ineligible for the District Director position because she did not meet the time-in-grade requirements. When Complainant came to work at the Agency, her prior experience at USPS was determined to be equivalent to that of a GS-13. Because she did not have the requisite experience at the GS-14 level, she was not eligible to apply for the District Director, a GS-15, position. Although Complainant felt that her prior experience at the USPS, combined with her position at the Agency, qualified her for the District Director position, this is insufficient to overcome the Agency’s legitimate nondiscriminatory reason. Further, there is no evidence to support Complainant’s assertion that she was incorrectly graded when she started with the Agency. 2021003708 6 Harassment Based on Sex and Reprisal - Claim 1 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). 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). Complainant failed to show any nexus between her protected classes and her non-selection. Complainant’s allegations of harassing conduct is also uncorroborated by the evidence in this case. Further, Complainant’s assertions that the alleged harassment “culminated” in her non- selection is unsupported by record evidence. We therefore find that Complainant’s harassment allegation fails. Likewise, to the extent that Complainant is alleging retaliatory harassment, we find that her claim fails. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Complainant has not described any action that might well have dissuaded or reasonably deterred a reasonable worker from making or supporting a charge of discrimination in the future. In point of fact, Complainant filed her EEO complaint after her non-selection and the alleged comment by an unnamed management official. 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 finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. 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. 2021003708 7 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. 2021003708 8 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 November 22, 2021 Date