[Redacted], Lexie T., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2020005022 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lexie T.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020005022 Hearing No. 410-2020-00242X Agency No. NPS-19-0644 DECISION On August 31, 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 final action 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facility Management Software System Network Specialist, GS-11 at the Agency’s Martin Luther King Jr. Historical Park (MALU) in Atlanta, Georgia. On August 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (59) as follows: 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. 2020005022 2 1. She was subjected to harassment and a hostile work environment when: a. In July of 2018, she applied to several temporary promotions/details and was not selected; b. On May 16, 2019, Complainant was questioned by her supervisor asking if she was at work when she had previously advised him that she had a doctor’s appointment2; and c. On July 30, 2019, she was harassed by the Superintendent; 2. From some time in 2018 and continuing until late 2019, Complainant was not given higher level pay for doing higher level work. Complainant explained that in 2018, she applied for two temporary positions, the Facility Manager position at MALU, and a temporary detail with the Space Management and Property Division in Washington, D.C. See Record of Investigation (ROI) at 155. She stated that the Deputy Superintendent (DS) told her that she was the only applicant for the Facility Manager position at MALU, and the Superintendent said she would get back to Complainant. See ROI at 156, 159-60. In the meantime, Complainant stated that she was offered and accepted the Washington detail and sent the DS an email informing him that she had accepted the detail. See ROI at 160. Afterwards, she found out that two younger, male Maintenance Workers were appointed to be co-Facility Managers. See ROI at 161-62. Complainant explained that her Facility Management Software System Network Specialist position required her to travel to three different National Parks which she serviced, the Chattahoochee River National Recreation Area, the Kennesaw Mountain Battlefield Park, and MALU. See ROI at 151. Complainant stated that she was asked by the Facility Manager at Kennesaw to change the day on which she normally went to Kennesaw to Thursday and she agreed and informed her supervisor, the Facility Manager at MALU (FM), of the change. See ROI at 170. On the morning of May 16, 2019, a Thursday, Complainant sent the FM an email telling him that she had a doctor’s appointment that afternoon. See ROI at 169. Later that morning, the FM sent Complainant an email asking her whereabouts and then called Complainant asking where she was, which Complainant stated was upsetting because “he was insinuating that [she] wasn’t where [she] said she was.” See ROI at 172. On July 30, 2019, Complainant stated that she was on her Washington detail at the time but she was contacted by the Contracting Officer requesting a meeting to talk about a misunderstanding over a roof at MALU. See ROI at 183. She stated that she returned to MALU to help resolve the contracting issue. See ROI at 183. When she was at MALU, the Superintendent asked her what she was doing there and that Complainant needed to make up her mind if she was going to be in Washington or at MALU. See ROI at 183. Complainant also stated that when a contractor tried to talk to Complainant, the Superintendent specifically told the contractor not to talk to Complainant but to talk to the acting Facility Manager instead. See ROI at 183. 2 The AJ’s decision listed the date as May 19, 2019, but this appears to be a typo. See ROI at 176. 2020005022 3 Complainant stated that the incident was “demoralizing,” because she had only returned to MALU to help. See ROI at 184. Complainant explained that beginning in February of 2018, prior to and continuing after she returned from the Washington detail, when the former Facility Manager left, she began performing higher-level duties, including doing all the contracting, getting supervisor approval in the financial system, and planning projects. See ROI at 189-90, 192. Complainant explained that she performed these duties until the start of the new fiscal year in 2019, in order to help the current FM because he had not yet completed the training in order to perform certain duties within the system. See ROI at 190, 192. Complainant asserted that she was performing the duties of the Facility Manager, a GS-12 position, but not being paid accordingly, and when she discussed the issue with the Superintendent, the Superintendent only responded “Everybody has to chip in.” See ROI at 192, 200-201. 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 issued a decision without a hearing on July 1, 2020. The AJ found that the evidence in the record did not establish that the alleged harassment was due to a protected basis and it was also not sufficiently severe or pervasive. The AJ further found that the Agency established legitimate, nondiscriminatory reasons for not selecting Complainant for the temporary promotions and for not paying Complainant at a higher level and that Complainant had not shown that the Agency’s reasons were a pretext. The AJ therefore concluded that Complainant had not established that she was subjected to discrimination or a hostile work environment as alleged. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant first takes issue with the AJ’s dismissal of the case without giving the parties prior notice or a chance to respond. On the merits, Complainant contends that the AJ failed to view the evidence in the light most favorable to Complainant and also that the evidence in the record establishes that Complainant was harassed because of her protected bases. In response, the Agency argues that the AJ was entitled to issue a summary judgment after holding an Initial Conference, as occurred here, and Complainant failed to submit any additional evidence to support her claim. The Agency further asserts that Complainant failed to establish a hostile work environment or disparate treatment due to any of her protected bases. 2020005022 4 ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Summary Judgment We will first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. As an initial matter, we note that the record does not contain a notice from the AJ to the parties informing them of her intention to issue a decision without a hearing. The AJ’s decision noted that, although the Order of Acknowledgment and Scheduling of Initial Teleconference permitted the parties to submit additional evidence, neither party did so. Commission regulations provide that an AJ may issue a decision without a hearing on his or her own initiative if the AJ determines that some or all of the facts are not in genuine dispute. Prior to doing so, the AJ must first give notice to the parties and provide them with an opportunity to respond in writing. 2020005022 5 The record in this matter does not show that the AJ first issued to the parties notice of her intent to issue a decision without a hearing. However, we find that the record is adequately developed and Complainant has not shown that there are genuine issues of material fact in dispute or the need for credibility determinations that merited a hearing. Therefore, we find that the AJ’s action was harmless and does not warrant a remand for a hearing. See Alejandro B. v. Soc. Sec. Admin., EEOC Appeal No. 2021002690 (Oct. 6, 2021). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that the evidence in the record does not establish that any of the incidents of alleged harassment were based on either Complainant’s sex or her age. We note that the Superintendent is also female and of a similar age to Complainant. See ROI at 257. The Superintendent stated that she was informed that Complainant had accepted another detail before she had made the decision of whether to approve Complainant’s temporary promotion. See ROI at 258-59. Moreover, the DS stated that he believed the two Maintenance Workers, who were selected for the temporary promotion, were chosen because the Superintendent likes them because they “do exactly what the Superintendent says.” See ROI at 314, 320. In addition, with regard to the incident on July 30, 2019, Complainant stated that she believed it was retaliation for taking the Washington detail, but not due to any of her protected classes. See ROI at 187. With regard to the incident on May 16, 2019, when the FM questioned Complainant about her whereabouts when she had a doctor’s appointment, the FM explained that it was a miscommunication and his only intention was to “make sure [they] had a clear understanding” about the change in her schedule and further stated that he apologized to her at the time and afterwards. See ROI at 374. We find that this incident is a routine work interaction and was neither severe nor pervasive enough to rise to a level of harassment. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) (noting that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences). Complainant’s subjective assertion that she felt the incident was questioning her integrity is not sufficient to meet the objectively offensive standard required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). 2020005022 6 While we acknowledge that the evidence in the record indicates an interpersonal conflict between Complainant and the Superintendent, there is no evidence that the conflict is due to any protected basis. The DS stated that there have been numerous complaints filed against the Superintendent, who has created a problematic “culture,” because she likes “people that will break a policy or procedure because she asks them to,” and doesn’t like “people that don’t look like her, people that have more education than her.” See ROI at 311, 315. The DS also stated that he believed the Superintendent “has a dislike for certain staff members,” including Complainant. See ROI at 338. In addition, we note that one of the Maintenance Workers, who is not a member of any of Complainant’s protected classes, asserted that the Superintendent is “an evil person” and that to his knowledge, other people, including himself, have also filed complaints against the Superintendent. See ROI at 411, 417. Because the evidence in the record does not indicate that any of the incidents of alleged harassment were due to any protected basis or that the harassment was sufficiently severe or pervasive to alter a term or condition of employment, we conclude that Complainant has not established that she was subjected to a hostile work environment. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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 Dep’t of Cmty. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990). We find that the Agency articulated a legitimate, nondiscriminatory reason for its actions with respect to both the non-selection for the temporary promotion and her claim that she was performing higher-level duties without being paid accordingly. 2020005022 7 The Superintendent stated that Complainant was not approved for the temporary promotion because before the decision could be made, she learned that Complainant had accepted another detail. See ROI at 258-59. Complainant also acknowledged that she was only informed she would not get the temporary promotion after she had already told the DS that she had accepted the Washington detail. See ROI at 160-61. With regard to the pay issue, the FM explained that for a time, he was unable to do the necessary training for some tasks because the training was time-consuming and required him to “take some time away and sit down and do it.” See ROI at 379-81. He stated that he asked Complainant to help him with some of his duties because he has a heavy workload. See ROI at 379-81. The Superintendent stated that this was a “Personnel matter,” and that if Complainant felt she was performing duties outside of her performance description, she could have gone to Personnel and asked to have her position audited to determine the accretion of her duties. See ROI at 265-67. The Agency having articulated a legitimate reason for its action, the burden thus returns to Complainant to establish, by a preponderance of the evidence, that the Agency’s reason is a mere pretext for discrimination. We find that Complainant has not met her burden. We note that with regard to the pay issue, Complainant does not appear to assert that the Agency’s explanation was a pretext but admitted that she did not think it was “necessarily anything to do with [her] age or sex.” See ROI at 206. With regard to the non-selection, the only evidence to support Complainant’s assertion of pretext is the DS’s testimony casting doubt on the Superintendent’s explanation and further stating that, in his opinion, the reason for the non-selection was “age and sex, but it could be race.”3 See ROI at 311-12, 317. The DS did not, however, provide any evidence or explanation to support his opinion and it appears that the DS does not have a good working relationship with the Superintendent. See ROI at 315. The DS also stated that he disagreed with the Superintendent’s decision to select the two Maintenance Workers for the temporary promotion rather than Complainant because “neither one of those two employees had the knowledge, skills, or abilities to Act as a Facility Manager,” and as a result, he “had to hold their hands to get projects done where [he] wouldn’t have had to do that with [Complainant].” See ROI at 313. We note, however, that there is no independent evidence in the record to support the DS’s assertion that the Maintenance Workers were not qualified to act as a Facility Manager. Absent more, this is not sufficient to establish that the Agency’s reason was a pretext. We note that pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See Alda F. v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120182538 (Nov. 27, 2019). 3 Complainant did not allege race as a basis for her complaint. See ROI at 37. We note that there is no evidence in the record to indicate that race may have been an issue. 2020005022 8 Moreover, the Commission will not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. See Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (July 27, 2012) reconsideration denied, EEOC Request No. 0520120603 (Jan. 31. 2013). We therefore find that Complainant has not established that the Agency’s reasons for its actions were a pretext for discrimination. 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 concluding Complainant did not establish that she was subjected to unlawful 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. 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. 2020005022 9 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. 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 March 8, 2022 Date