U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raylene B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004421 Agency No. HS-TSA-02429-2018 DECISION On August 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 7, 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. BACKGROUND Complainant worked as a Program Analyst, SV-0343-I, at the Agency’s Headquarters in Arlington, Virginia. On November 4, 2018, Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female) and reprisal (prior protected EEO activity) when: 1. In March 2017, neither her first-line supervisor (S1) nor her second-line supervisor (S2) referred Complainant for a promotion; 2. In October 2017, Management issued Complainant a performance rating of “achieved excellence;” 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. 2020004421 2 3. At a meeting held in October 2013, S1 repeatedly asked Complainant whether she understood what was being discussed and commented that Complainant looked confused; 4. In December 2017, S1 and S2 awarded Complainant a lower bonus and in-band increase (IBI) than that received by two male colleagues (CW1 and CW2); 5. In June 2018, S1 and S2 did not select Complainant to represent the Agency overseas; 6. On July 6, 2018, S1 directed Complainant to provide a written statement; 7. On July 9, 2018, S2 failed to act after Complainant reported that she was being harassed by S1; 8. On July 10, 2018, S1 yelled at Complainant; and 9. On August 3, 2018, S1 issued Complainant a letter of counseling. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On October 18, 2019, Complainant requested a final agency decision without a hearing. In accordance with Complainant’s request, the Agency issued a decision in which it found that a preponderance of the evidence did not support that Complainant was subjected to discrimination or reprisal. 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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). 2020004421 3 The prima facie inquiry may be dispensed with in this case, however, since S1 and S2 had articulated legitimate and nondiscriminatory reasons for each of their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (1), S1 averred that she recommended Complainant for promotion as well as CW1 and CW2, but that budgetary constraints occasioned by a hiring freeze meant that only two could actually be promoted. IR 164. S2 averred that the level and complexity of the candidates’ accomplishments was the determining factor in the promotion action, and that Complainant was not “operating on the same level” as CW1 and CW2. IR 152-54. Concerning incident (2), Complainant, CW1, and CW2 were all given performance appraisal ratings of “achieved excellence. S1 averred that CW1 and CW2 went “above and beyond the call of duty” at a pace that she did not even expect of herself. S1 pointed out that CW1 created a number of spreadsheet-based tools for the Human Resources Department and that CW2 could take over for her when she was out of the office and could “run with any issue.” S1 also averred that Complainant was a great performer but not at the same level as CW1 and CW2. IR 154-55, 165-66. Regarding incident (3), S1 affirmed that she did not recall the specifics of the incident but remembered that she was merely reacting to Complainant’s facial expressions, which led her to believe that Complainant did not understand what she had just said. S1 reiterated that she did not treat or speak to female employees differently than male employees. Three of Complainant’s colleagues, including CW1 and CW2, were present at the meeting at which this incident took place. They all reported that they had never seen S1 treat women any differently from men. The third coworker was female. IR 166, 181, 185, 189. With regard to incident (4), S1 cited the higher performance ratings and accomplishments of CW1 and CW2 as a justification for the size of their respective bonuses. In particular, S1 referenced CW1’s development of the spreadsheet tools referenced in incident (2). S1 also averred that she made the initial recommendations as to who should get awards, she did not set specific amounts. S2 stated that the initial recommendations were based on a ranking of the employees’ performance appraisal scores. From there, management would discuss the recommendations and make adjustments, where appropriate. IR 155-56, 166-67. With respect to incident (5), S1 affirmed that the Agency had overseas operational centers in Singapore and Frankfurt, Germany, but that details to these outposts were not regarded as rewards for excellent performers. She further averred that the decisions for overseas details were made while Complainant was already on a detail to Customs and Border Protection, and that a female employee was sent to Singapore. S2 asserted that availability and experience in providing training were the primary factors in deciding who was given overseas details, and that Complainant was not sent to Frankfort or Singapore because she was already on another detail. IR 156-57, 168-69. 2020004421 4 As to the remaining incidents, during the course of a conversation that had taken place in S1’s office, Complainant had led S1 to believe that in making her complaint about her bonuses and IBIs being lower than those awarded to CW1 and CW2, she had accessed the personnel records of CW1 and CW2 for personal reasons and without authorization. S1 thereupon initiated an internal investigation and directed Complainant to answer questions put to her by the investigator. Complainant repeatedly failed to do so, and had asked for numerous extensions. Ultimately, after consulting with a Human Resources Specialist and upon that individual’s recommendation, S1 issued Complainant a letter of counseling for her noncooperation. IR 153, 158-60, 169-72, 176- 77 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by S1 and S2 are pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). The Commission cannot second-guess an Agency’s personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, supra, 450 U.S. at 259. When asked why she believed that S1 and S2 were motivated by unlawful considerations of her gender and EEO activity in connection with not being promoted, receiving a lower performance rating, bonuses and IBIs than CW1 and CW2, and not being given an overseas detail, Complainant averred that she was passed over in favor of two male colleagues despite being given the same performance rating and having more seniority. IR 111, 113-14, 116-18. When asked about S1’s comment that she looked confused about what was being discussed at the meeting, Complainant averred that S1’s treatment of her male coworkers was different and that in general, women were expected to go above and beyond while men were awarded many times over if they did so. IR 114. When asked about why she believed that her sex and EEO activity were factors in S1’s continuously pressing her to provide a statement in connection with the internal investigation, Complainant maintained that had she been a male, she would not have been subjected to such excessive scrutiny. IR 120-25. Beyond her own affidavit testimony, however, Complainant has presented neither affidavits, declarations or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by S1 and S2 or which would cause us to question their truthfulness as witnesses. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. After reviewing the evidentiary record in its entirety, we find that Complainant has failed to demonstrate beyond a preponderance of the evidence that she was subjected to discrimination or reprisal. 2020004421 5 Hostile Work Environment To the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by S1 or S2 were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or reprisal occurred. 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. 2020004421 6 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 February 15, 2022 Date
