U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Regina M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021003128 Hearing No. 510-2020-00114X Agency No. HS-FEMA-01305-2019 DECISION 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 April 20, 2021 final order concerning a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Reservist deployed as a Division Supervisor (DIVS) at the Agency’s Operations Cadre Branch III Field Office in Tallahassee, Florida. Consequently, Complainant had several temporary supervisors while stationed at the Branch III Field Office.2 However, Complainant’s first and second level supervisors (S1 and S2) of record were stationed at FEMA Headquarters in Washington, D.C. 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 These temporary supervisors included two Operations Branch III Directors (OBD1 and OBD2), a Deputy Operations Section Chief, and an Operations Section Chief. 2021003128 2 On November 27, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to discriminatory harassment based on race (African American), sex (female), age (YOB: 1963), and in reprisal for prior protected EEO activity3 when: 1. on November 25, 2018, management issued Complainant an unsatisfactory performance appraisal; 2. on unspecified dates, management required Complainant to commute or relocate one and one-half hours away from her hotel; 3. from November 15, 2018 through November 30, 2018, management removed Complainant’s responsibilities, and offered her a lower level position in another program; and 4. from November 15, 2018 through November 30, 2018, management removed Complainant’s name from officially published documents. Following the completion of the report of investigation of the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on January 19, 2021, the Agency issued a motion for summary judgment. After receiving an opposition from Complainant and a reply from the Agency, the AJ issued a decision by summary judgment in favor of the Agency. On April 20, 2021, the Agency issued a final order implementing the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues that summary judgment was not appropriate. 3 Complainant testified that while she was deployed in Tallahassee, Tennessee from March 12, 2018 through March 23, 2018, she reported, in writing and verbally, discriminatory, hostile, and unhealthy management practices of a named Operations Branch Director (OBD2), who Complainant identifies as a responsible management official in the instant complaint. 2021003128 3 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). 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2021003128 4 Our independent review of the record indicates that the AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for its actions. Performance Appraisal (Claim 1) Complainant testified during her deployment from October 2018 through November 2018, she received a performance evaluation from OBD1 and OBD2. The record reflects that Temporary Duty Supervisors, such as OBD1 and OBD2, are required to complete a Deployment Performance Appraisal on each Reservist with feedback on the Reservist’s performance. Here, Complainant explained that OBD1 evaluated her performance from October 29, 2018 through November 19, 2018 and give her a favorable satisfactory rating. In contrast, Complainant stated that OBD24 evaluated her for an approximate three-day period from November 20, 2018 through November 26, 2018,5 and issued an unsatisfactory performance review. OBD2 acknowledged that he rated Complainant “unsatisfactory” on three elements and “satisfactory” on four elements comprising Complainant’s evaluation. OBD2 asserted that he made these determinations based on his observation of Complainant’s performance. Nevertheless, S2 explained that OBD2’s evaluation was not accepted, was removed from Complainant’s personnel folder, and OBD1’s evaluation was used instead. S2 reasoned that the decision to use OBD1’s evaluation was based on OBD1 being Complainant’s field supervisor for most of her deployed time. As a result, OBD1 could provide a better overall assessment of Complainant’s performance. Therefore, OBD2’s evaluation was never used. Long Distance Commute Requirement (Claim 2) Complainant testified that OBD2 instructed her to report to the new branch office every morning even though the branch office was a two-hour commute from Complainant’s hotel. As a remedy, Complainant further testified that OBD2 advised her to change her lodging location. However, Complainant acknowledged that after she spoke to the Deputy Operations Section Chief (DOSC) about the matter, the DOSC informed her that she would not have commute to the branch office every morning or relocate closer to the branch office. Thereafter, Complainant confirmed that OBD2 informed her that she did not have to report to the branch office every morning, but OBD2 did request Complainant attend a November 19, 2018 morning meeting at the branch office. However, Complainant did not indicate that she was required to commute to the branch office after this date. 4 OBD2 is the same management official Complainant reported as having discriminatory, hostile, and unhealthy management practices in March 2018. 5 Complainant indicated that she was only supervised by OBD2 for three days due to the office being closed during the Thanksgiving holiday. 2021003128 5 Although the DOSC testified that she was unaware of Complainant ever being asked to commute approximately two hours away from her hotel, the DOSC acknowledged that FEMA staff are continuously asked to relocate, if necessary, to fulfill the mission and staffing needs in large geographical areas. Removal of Responsibilities (Claim 3) Complainant testified that on November 21, 2018, she overheard a conversation between the DOSC and OBD2. Complainant explained that she heard the DOSC state the following: that’s insubordination, that’s insubordination twice, that’s insubordination three times. I’ve heard so many bad things about this woman and I’ve only met her for 30 minutes. Just hold on we’ll get her out of here soon . . . Complainant believed that the DOSC was talking about her when she made these statements which Complainant reported. Documentation in the record reflects that the Operations Section Chief (OSC) met with Complainant on November 23, 2018, and offered Complainant the opportunity to take a position in Individual Assistance which would not require Complainant to work under the DOSC or OBD2, because of the conversation Complainant heard on November 21, 2018. The OSC also indicated that she had concerns with Incident Command System (ICS) processes and procedures.6 However, Complainant declined the offer. Subsequently, the OSC informed Complainant that she no longer had another mission requirement at the time for Complainant and notified Complainant on November 24, 2018, that she would be one of two DIVS demobilized from Branches II and III. The OSC further explained that all branches were making a transition to single DIVS by December 14, 2018. Documentation in the record further supports that on November 24, 2018, Complainant responded favorably to the OSC’s recommendation that she demobilize. Complainant indicated that she wanted to demobilize on November 25, 2018, and Complainant further indicated, in pertinent part, the following: Although unfortunate, I just want to let you know that I think you absolutely made the best decision. I’d rather go home than continue to work in an unpleasant environment. . . . You are a true leader and I respect your decision and wish you much success. 6 The OSC explained in a November 25, 2018 memorandum that Complainant has “gone outside of the chain of command, perceived targeting when provided tactical direction, lack of understanding in coaching of others, and a general inability to weight what is a critical issue.” 2021003128 6 The record also includes a FEMA Reservist Program Conditions of Employment document which states that a Reservist position is “a temporary intermittent position . . . and [a Reservist] may be terminated at anytime, with cause . . . or without cause (e.g. downsizing of workforce, change in program direction or operational needs.” Name Removed from Official Documents (Claim 4) Complainant testified that her name was removed from an official Branch Report even though she contributed to the operation. Complainant explained that the Branch Reports contains contact information and identifies the role of Branch level staff members. Complainant further explains that management failed to correct the error even after she notified them of the issue. OBD2 testified that the error was not intentional and was a clerical mistake and was ultimately corrected. Additionally, the OSC testified that she was aware of Complainant’s complaints regarding this issue. The OSC noted that while Planning staff made errors on documents on multiple occasions, there was no indications that these errors were specific to any individual. The OSC also explained that these issues were addressed with Planning leadership, which provided additional training to staff to prevent these errors. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, age, and in reprisal for prior protected EEO activity. Harassment To establish a claim of discriminatory environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that he 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 a protected basis - in this case, her race, sex, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2021003128 7 Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1 - 4 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, sex, age, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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. 2021003128 8 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 September 13, 2021 Date
