[Redacted], Mireille J., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 9, 2022

Appeal No. 2021001268 (E.E.O.C. Mar. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mireille J.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021001268 Hearing Nos. 541-2019-00151X and 541-2017-00113X Agency No. 2016-0101-R08 and 2015-0102-R08 DECISION On December 8, 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 October 1, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Attorney, Grade GS-14, at the Agency’s the EPA Region 8, Legal Enforcement Program in Denver, Colorado. Complainant filed two EEO complaints (identified as Agency Nos. 2016-0101-R08 and 2015- 0102-R08), later consolidated, alleging the Agency had subjected her to discriminatory harassment based on sex (female), disability (perceived PTSD, hearing, and being an extrovert), and in reprisal for EEO-protected activities (opposing harassment of a coworker with mental disability and filing Agency No. 2015-0102-R08) 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. 2 2021001268 1. In April 2014, Complainant's second-level supervisor discredited her in the presence of staff members. 2. On November 18, 2014, Complainant was harassed in a meeting by a Department of Justice attorney in the presence of her management. 3. On December 6, 2014, Complainant's first-level supervisor threatened to charge her with insubordination if she did not agree with a workgroup decision on a penalty offer. 4. On January 26, 2015, her second-level supervisor proposed suspending Complainant for five days, and on April 21, 2015, Deputy Assistant Regional Administrator for Region 8, issued the decision to suspend Complainant for two days, instead of the five days proposed. 5. On October 26, 2015, Complainant was given a lower rating performance evaluation than her previous 25 years at the Agency. 6. Since November 2015, Complainant’s managers have assigned her an unreasonable amount of work; excessively scrutinized and criticized her work performance and conduct; imposed unreasonable, unnecessary and placed burdensome restrictions on her physical freedom and communications with others. 7. On June 13, 2016, the Program Director for the Office of Enforcement, Compliance and Environmental Justice (who became Complainant’s second-level supervisor in September 2015) issued Complainant a “Notice of Decision and Corrective Action,” including corrective actions, stating she had violated the Agency Anti-Harassment Policy. 8. On December 9, 2016, Complainant was issued a Suspension Letter. 9. On an unspecified date, the Complainant received a downgraded FY 2016 Performance Appraisal. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 3 2021001268 Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 18, 2020 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 2, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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. See 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. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); see also 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. 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 fact-finder could not find for Complainant. The evidence developed during the investigation of the complaint fully supports the AJ’s conclusion that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Regarding the first claim, the second-level supervisor (“S2”) explained that at her first meeting in her management position, Complainant had disparaged coworkers and been disrespectful toward S2. As a result, S2 verbally counseled Complainant for inappropriate conduct. Regarding the second claim, Complainant alleged the Department of Justice Attorney had teased her about having a New York accent. This Commission has held that such petty-slights are not severe or pervasive and do not rise to the level of actionable harassment in violation of Title VII. 4 2021001268 Regarding the third claim, while part of a group whose goal was to negotiate a settlement with opposing counsel, Complainant had disagreed with the group lead in the presence of opposing counsel. Complainant’s disruptive conduct as described in the third claim, caused the issuance of the fourth claim’s two-day suspension. Regarding the fifth claim, that Complainant believed she merited a performance rating better than “Fully Successful,” her first-level supervisor (“S1”) stated that Complainant had been expected to provide activity reports every week she worked, whereas Complainant only provided nine activity reports during the 52-week performance assessment period. Regarding the sixth claim, Complainant expressed a preference to be assigned work in areas where she had already developed expertise. However, Complainant accused management of not giving her enough work to do. As to her accusations that management had excessively scrutinized her and restricted her communications, the record revealed that Complainant had been reminded of Agency policy for professional conduct. For example, S1 directed Complainant to refrain from attacking management as “corrupt and dirty” in the in the comments section of her leave requests. Regarding the seventh claim about Program Director’s written counseling for violation of the Agency’s anti-harassment policy, Complainant had created a survey and distributed it to co- workers which suggested that an employee’s marriage to a manager in a different section was unethical. Witnesses had also alleged that Complainant had taken unauthorized pictures of the same employee on her phone. Complainant was directed to avoid contact with the employee who accused her of harassing him. Regarding the eighth claim that Complainant’s second 9-day suspension was unjustified, to the contrary, we note that the discipline was based upon an investigation that had substantiated allegations that Complainant had harassed another employee in addition to engaging in disruptive misconduct. Regarding the ninth claim concerning Complainant’s 2016 performance report being wrongfully downgraded to “Fully Successful” S1 testified that Complainant had only submitted four weekly action reports for the entire year. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that the reasons proffered by Agency witnesses were pretext designed to mask discriminatory motivations or retaliatory animus. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 5 2021001268 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. 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). 6 2021001268 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 9, 2022 Date