[Redacted], Reita M., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2020003323 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003323 Agency No. 2018-27888-FAA-02 DECISION On May 4, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision dated April 14, 2020, 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. At the time of events giving rise to this complaint, Complainant worked as the Agency’s Historian, FG-0170-J, at its Headquarters in Washington, D.C. Her position was located within the Office of Chief Counsel. On September 24, 2018, Complainant filed a formal complaint in which she alleged that the Agency subjected her to a hostile work environment on the bases of her race (Caucasian), color (White), and age (59). In support of her claim, she identified the following incidents: 1. In June 2015, her second-level supervisor (S2) did not open emails that Complainant had sent to her; 2. On August 17, 2016, S2 did not open an email Complainant sent about a promotion; 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. 2020003323 2 3. On September 23, 2016, Complainant’s job duties were changed as a result of an Office of General Counsel (AGC) reorganization and she was told that she would work 20 percent of her time for her first-level supervisor (S1) and S2 doing administrative tasks; 4. On October 14, 2016, S2 denied Complainant’s request for promotion, and she was denied a promotion from Agency Historian, FG-0170-J-Band level to FG- 0170-K Band Level; 5. On October 31, 2016, S2 opened her August 17, 2016 email requesting promotion consideration but did not respond; 6. On November 26, 2016, Complainant was detailed to the Office of Financial and Management’s Regions and Property Management Office (ARO) from the AGC; 7. From November 26, 2016, while Complainant was detailed to ARO, AGC-10 management delayed responding to her work requests to have resources filled and travel orders signed, unless she included AGC-2 on her requests; 8. On unspecified dates in 2016, Complainant’s training requests and research database renewals were denied; 9. On unspecified dates in 2016, Complainant was denied cash awards; 10. In December 2016 and January 2017, S2 directed Complainant to ask her ARO detail supervisor to request a promotion for her; 11. On December 15, 2017, the Deputy Chief Counsel denied Complainant’s request not to be reassigned back to AGC-10 due to the hostile work environment therein; 12. On December 18, 2017, the Chief Counsel denied Complainant’s request not to be reassigned back to AGC-10 and did not respond to her December 19, 2017 email reiterating her concerns about the hostile work environment in that office; 13. On February 25, 2018, Complainant was reassigned from ARO back to AGC-10 and her return was not acknowledged for three weeks; 14. On March 5, 2018, Management did not bring the OST General Counsel to the Library or History Office during a tour of the AGC and introduction to AGC staff; 15. On March 6, 2018, Complainant was not invited to an AGC-10 all-hands meeting with the Chief Counsel; 16. On March 19, 2018, Complainant was assigned to work directly for S2; 2020003323 3 17. Since March 19, 2018, S2 has changed her work conditions and job requirements and refused to discuss the changes and related training with her; 18. Since March 19, 2018, Complainant has not been provided sufficient workspace, her request for a new table was denied, and she purchased her own table; 19. Since March 19, 2018, other staff under S2 do not provide Complainant with information required to complete her work; 20. On March 27, 2018, Complainant received substantially altered new performance management plan performance standards; 21. On March 28, 2018, Complainant’s second-level supervisor denied her request for reassignment due to a hostile work environment and the Chief Counsel did not respond to her request; 22. On March 28, 2018, S2 refused her request to review a short article for accuracy and did not approve the article for several months; 23. On March 28, 2018, S2 did not respond to her email regarding leave requests pending his approval; 24. On April 5, 2018, Complainant was given an assignment to prepare the emergency plan/continuity-of-operation plan (COOP) within 45 days; 25. On April 10, 2018, S2’s deputy provided Complainant no feedback regarding the GSA SF2050 she submitted for review; 26. On April 12, 2018, S2’s deputy approved a leave request Complainant submitted in mid-February 2018; 27. On April 12, 2018, S2’s deputy refused to answer Complainant’s questions regarding a “walkthrough” of her office space stating, “I know how you are;” 28. On May 3, 2018, Complainant was excluded when all AGC-10 personnel were reassigned to report to S2’s deputy; and 29. On June 13, 2018, Complaint was excluded when management released staff 59 minutes early. The Agency initially dismissed the complaint for untimely EEO counselor conduct and failure to state a claim. Complainant appealed, and in Reita M. v. Dep’t of Transp., EEOC Appeal No. 2019001791 (June 4, 2019), we reversed the Agency’s dismissal and remanded the matter for further processing. 2020003323 4 At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or to receive a final decision on the merits. Pursuant to Complainant’s request, the Agency issued its final decision in which it concluded that Complainant failed to establish that she was subjected to discrimination or a hostile work environment. On appeal, Complainant argues that the Agency failed to properly investigate her complaint, treating her allegations as 29 separate incidents rather than a single claim of hostile work environment. Complainant contends that the totality of the incidents demonstrate that she was subjected to a discriminatory hostile work environment. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). As an initial matter, Complainant claims on appeal that the investigation was inadequate and unfair. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant failed to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Hostile Work Environment To establish a claim of harassment Complainant must show that: (1) she belongs to 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 her statutorily protected classes; (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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2020003323 5 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 Serv., 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, management officials subjected her to a hostile work environment. She identified 29 incidents of what she believed to be discriminatory harassment, some of which were discrete occurrences. The Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, with regard to incident (3), S2 averred that as a result of a reorganization instituted by the previous Chief Counsel, the non-legal functions of AGC (including the Historian, the Law Librarian, and the Executive Assistants) were to be housed in AGC-10. S2, the director of AGC- 10 informed Complainant that her responsibilities would include some administrative duties. As to incident (4), S2 stated that the position of Historian was properly classified at the J-Band level, which is roughly equivalent to GS-14 in the general schedule, and that this classification was set forth within the Office of Personnel Management’s classification system. To obtain a higher pay level, Complainant would need to be either classified in a different job series or obtain management responsibilities. Concerning incident (9), S2 stated that he had recognized Complainant with cash awards, but the amounts of those awards were limited by budgetary constraints. Regarding incidents (11) through (13) and (15) and (16), which arose out of Complainant’s return to AGC-10 after being detailed to ARO, S2 explained that AGC was where her job function was housed, that Complainant was welcomed back to AGC-10, that the AG-10 staff meeting from which Complainant was allegedly excluded had taken place the day before Complainant received official notification of the end of her detail with ARO. With respect to incidents (24) and (25), S2 averred that Complainant was the right person to prepare the emergency plan and that she had performed the assigned task so well that he recommended that she receive a cash award in the amount of $2,500. As for the remaining incidents, S1, S2, and the other management officials had provided similarly legitimate and nondiscriminatory explanations for each of those incidents. In support of her hostile work environment claim, Complainant presents the affidavit of the Law Librarian, a white male who is approximately her age. 2020003323 6 The Law Librarian averred that he believed that he and Complainant were placed into AGC-10 in order to convince them both to retire. He also averred that the rest of the employees in AGC- 10 were African-American and considerably younger. Because 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. Complainant presented no evidence, other than subjective beliefs and assertions, that the actions complained of were taken because of her protected classes. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that she was subjected to discrimination or a hostile work environment as alleged. It is therefore the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision. 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. 2020003323 7 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. 2020003323 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 June 14, 2021 Date