U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilde H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 2021001221 Hearing No. 520-2020-00059X Agency No. USA-2019-00488 DECISION On December 3, 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 November 3, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order. BACKGROUND Between 2008 and 2015, Complainant worked as a Support Services Assistant for the U.S. Attorney’s Office, District of Connecticut (USAO) located in New Haven, Connecticut. In December 2015, Complainant was promoted to a GS-8 Legal Assistant position and took over docketing at that time. 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. 2021001221 2 On April 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on her race (African- American), disability (Anxiety Disorder, Post Traumatic Stress Disorder, and thyroid dysfunction), age (54), and reprisal (prior protected EEO activity under) when: 1. Since December 2015, she has been denied sufficient training to enable her to efficiently perform her job; 2. Since 2017, she has not been invited to attend unit meetings; 3. On November 15, 2017, she was verbally reprimanded for leaving work at 3:50 p.m.; 4. On May 9, 2018, she was yelled at for talking to another employee; 5. On October 31, 2018, she was yelled at for inputting indictments incorrectly into CaseView;2 6. On February 15, 2019, she was issued a Letter of Reprimand (LOR); and 7. On April 1, 2019, she received a “Satisfactory” performance review.3 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. UNDISPUTED FACTUAL BACKGROUND Claim 1 - Training Complainant asserted that she was denied training to enable her to efficiently perform her job. The undisputed record shows that at the time Complainant took over docketing duties there was no formal training on CaseView. The record shows that Complainant’s supervisor (S1) also had no training on CaseView during the relevant timeframe. In addition, Complainant’s predecessor was unable to provide training because she had no experience with this newly-implemented software. Moreover, the record is devoid of evidence that any similarly situated employee outside Complainant’s protected classes was treated more favorably. 2 CaseView is a computer software that combines Word-like and Excel-like programs with additional features specifically designed to facilitate the automation of financial statements. 3 The Agency initially dismissed several claims for untimely EEO Counselor contact; however, following the Pre-Hearing Conference, the EEOC Administrative Judge (AJ) reinstated Claims 2, 3, 4, and 5 as evidence in support of Complainant’s overall hostile work environment claim. 2021001221 3 Claim 2 - Invitation to Unit Meetings S1 conducted Monday morning meetings with the IT staff. Complainant’s predecessor attended these meetings for a brief initial period. Complainant testified that when she came on board, S1 invited her to the meetings so she could get familiar with IT.4 After a period of time, S1 ceased inviting Complainant. Complainant believed that because she was responsible for the property management inventory, she should attend the IT meetings on a regular basis. Claims 3 -5 - Verbal Reprimands Complainant missed a call from her supervisor because she left work at 3:50 p.m., instead of 4:00 p.m. Complainant asserted that S1 “yelled” at her for leaving work early. In another incident, S1 verbally reprimanded Complainant for spending over 20 minutes socializing with another employee during work hours. With respect to a third incident, the record shows that a co-worker spoke to Complainant in April 2018 about indictments being input incorrectly into CaseView. Several months later the Criminal Chief went to Complainant’s office to discuss the same problem with indictments being input incorrectly in CaseView. In October 2018, after learning that despite two prior warnings, Complainant continued to incorrectly input the indictments, S1 verbally reprimanded Complainant for her continued failure to correctly input the indictments into CaseView. Claim 6 - LOR Complainant was issued a LOR on February 15, 2019 in response to three incidents. S1 stated that she issued the LOR because Complainant’s conduct was not meeting USAO’s standards. The first incident cited in the LOR involved an altercation with an IT supervisor (ITS) on September 27, 2018. Complainant claimed that ITS’s backpack hit her when she was standing next to him in an elevator. Thereafter, Complainant went to ITS’s office and told him what he had done on the elevator was not nice. The record shows that ITS complained to S1 that Complainant confronted him in a very argumentative manner. In addition, two witnesses in the office confirmed to S1 that Complainant came in the office aggressively, ITS asked Complainant to leave, and then ITS closed his door. When S1 spoke to Complainant about ITS’s version of the events, Complainant admitted she should not have confronted him. The second incident referenced in the LOR involved an altercation on October 19, 2018, with a co-worker(C1). C1 asked Complainant to fill out some forms, and Complainant responded, she does not fill out forms. The undisputed record shows that S1 spoke to C1 about the incident where Complainant was asked to fill out forms. C1 relayed that she asked Complainant to assist with completing closing sheets for old files. Because Complainant would have been the person with the data to complete the forms, S1 believed Complainant’s response was inappropriate. 4 S1 corroborates this explanation. 2021001221 4 The third incident in the LOR involved another coworker (C2). According to C2, Complainant was “sarcastic, aggressive and rude” when she told a new employee not to listen to her because she (C2) does things incorrectly. S1 explained that when determining the appropriate administrative action for the three incidents, she took into consideration Complainant’s lengthy history of disciplinary actions. Specifically, Complainant had already received a LOR in 2004, a two-day suspension in 2006 and a seven-day suspension in 2012. S1 further explained that she served the LOR on Complainant because these confrontations with co-workers seemed to be escalating. Complainant contended without corroborating evidence that the LOR was discriminatory and retaliatory because in her opinion “in at least two of the events” she believed her coworkers engaged in conduct that was “equal to or more egregious than the conduct alleged against [her].” Claim 7 - Performance Appraisal Complainant initially received a “Satisfactory” performance review for 2018. Complainant refused to sign it. The next day, S1 changed the performance review to “Outstanding.” S1 explained that she upgraded Complainant’s performance review the next day because she had “misunderstood what [Complainant’s] duties were with regard to property management.” ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, 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). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 2021001221 5 Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We agree with the AJ that the alleged incidents, taken together, are not sufficiently severe or pervasive to be unlawful. Rather, the incidents challenged by Complainant reflect common workplace disagreements between supervisors and subordinates that relate to disagreements with managerial decisions and processes, including those relating to assignments. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Looking at the allegations in totality and in a light most favorable to Complainant, these events are not sufficiently severe or pervasive to alter the conditions of Complainant’s employment. See, e.g., Taylor v. Dep’t of Educ., EEOC Appeal No. (June 19, 2009) (alleged acts, including supervisor “yelling” at complainant in meeting and writing critical and abrasive emails, not sufficiently severe or pervasive). Even assuming, the alleged incidents were sufficiently severe or pervasive, the record is devoid of evidence that any responsible management official was motivated by discriminatory or retaliatory animus. For example, with regard to CaseView training, at the time Complainant took over docketing, there was no formal training on CaseView. Nonetheless, management attempted to contact individuals from another district to assist Complainant. 2021001221 6 Notwithstanding, the record reveals that the lack of training was an issue for all Districts, not just Complainant. With respect to the unit meetings, S1 initially invited Complainant to these meetings to get familiarity with IT responsibilities, then no longer required her to attend these meetings. S1 treated Complainant’s predecessor in the same manner. Regarding the verbal reprimands, the record demonstrates that Complainant was corrected for leaving work early; gossiping with a co-worker; and for mistakes made in CaseView. With respect to the LOR, as discussed above, Complainant had a history of conflicts with co-workers and she was involved in three escalating incidents that warranted a reprimand. Finally, as to the performance appraisal, S1 initially gave Complainant a “Satisfactory” performance review, then upgraded the review to “Outstanding” one day later due to a misunderstanding about Complainant’s duties. Construing the evidence in the light most favorable to Complainant, the Commission finds that there is no evidence demonstrating that Agency officials were motivated by discriminatory or retaliatory animus. 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. 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 order which adopts the AJ’s decision without a hearing in support of the Agency. 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). 2021001221 7 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. 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. 2021001221 8 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 7, 2022 Date
