[Redacted], Renee P., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2021003845 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renee P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency. Appeal No. 2021003845 Agency Nos. HS-FEMA-00923-2020 HS-FEMA-01211-2020 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2021 final decision concerning the two formal complaints which claimed unlawful 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 During the period at issue, Complainant worked as a Technical Writer-Editor, GS-1083-13, National Preparedness Directorate (NPD) at the Agency’s Technological Hazards Division (THD), in Washington D.C. Complainant filed two formal complaints on March 31, 2020 (“Complaint 1” - Agency No. HS- FEMA-00923-2020) and April 27, 2020 (“Complaint 2” - Agency No. HS-FEMA-01211-2020), respectively. The Agency consolidated the two formal complaints for processing. Complainant claimed the Agency subjected her to discriminatory harassment based on race (African American), color (dark complexion), and in reprisal for prior protected EEO activity 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. 2021003845 2 1. On January 18, 2020, the Liaison Manager told Complainant that she was preventing other reservists from being deployed. 2. On February 1, 2020, the Liaison Manager made negative comments to Complainant and encouraged her to request demobilization. 3. On February 1, 2020, the Liaison Manager made disparaging remarks to Complainant about her supervisor. 4. On or around February 3, 2020, the Liaison Manager and others excluded Complainant from meetings which had been scheduled on February 3, 2020 and February 6, 2020. 5. On February 4, 2020, the Liaison Manager approached Complainant in an aggressive manner. 6. On January 10, 2020, management ignored Complainant’s requests to travel to Greece. 7. On February 10, 2020, Complainant was not assigned projects. 8. On February 14, 2020, Complainant received a FY 2019 performance evaluation with a score of “3” for teamwork. 9. On February 27, 2020, Complainant was excluded from team meetings. 10. On March 10, 2020, performance goals “that are normally written by supervisor and employees, were written by Senior Leaders.” 11. On March 10, 2020, Complainant was assigned unattainable performance goals. 12. On March 19, 2020, management ignored Complainant’s emails. After an investigation, Complainant was provided a copy of 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. In accordance with Complainant’s request, the Agency issued a final decision on May 11, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 2021003845 3 ANALYSIS AND FINDINGS To prove her harassment/hostile work environment 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 a protected basis - in this case, x, y or z. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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 (March 8, 1994). Regarding the assertion that on January 18, 2020, the Liaison Manager told Complainant that she was preventing other reservists from being deployed, the Liaison Manager (Caucasian, white) explained at that time she was not Complainant’s supervisor. The Liaison Manager asserted that she never told Complainant that she was preventing other reservists from being deployed. Regarding the allegation that, on February 1, 2020, the Liaison Manager made negative comments to Complainant and encouraged her to request demobilization, the Liaison Manager stated that while sitting at the same desk with Complainant and other writer, Complainant complained about her supervisor and that she stands over her work. The Liaison Manager stated that she informed Complainant that she had the option to demobilize if she was that unhappy with her supervisor. The Liaison Manager further stated that she did not make disparaging remarks to Complainant about her supervisor. Instead, the Liaison Manager stated that while Complainant’s supervisor is a tough and demanding boss, she and the supervisor have a good, professional relationship. Complainant’s immediate supervisor (“S1”) (African American, brown) also denied making disparaging remarks to Complainant. S1 further denied making a remark that Complainant was delaying reservists from being deployed. Regarding the allegation that on or around February 3, 2020, the Liaison Manager and others excluded Complainant from meetings that had been pre-scheduled on February 3 and 6, 2020, the Liaison Manager stated that she was not Complainant’s supervisor and had no knowledge regarding who assigned Complainant to attend a meeting as a writer. Furthermore, the Liaison Manager denied Complainant’s allegation that on February 4, 2020, she approached Complainant in an aggressive manner. Complainant’s subsequent acting supervisor (“S2”) (African American, black) acknowledged that Complainant requested to travel to Greece. S2 explained that he returned to the office on or about January 7, 2020, from a holiday break and was on duty travel from January 14-18, 2020, and from January 21-24, 2020. Upon his return to the office on January 28, 2020, he completed and signed the documents approving the travel and sent them to Complainant via email. Furthermore, S2 stated that traveling to Greece was not part of Complainant’s job duties and that it was a personal trip. 2021003845 4 Regarding the allegation that on February 10, 2020, Complainant was not assigned projects, S2 noted that upon the retirement of section chief, he assumed direct supervision of ten of twelve personnel assigned to the Policy and Doctrine Branch, including assigning projects in Complainant’s section. S1 encouraged all employees to review the “whiteboard” of projects in the Director’s office and select a project of interest. He recalled Complainant expressed interest in a “Marketing Project” and he assumed she was working on projects from her 2019 performance plan that were not completed in 2019. Further, S2 stated that based a review of Complainant’s accomplishments, he determined her performance of the rated Complainant’s performance a “3” for teamwork because of the Core Competency of Teamwork merited a rating of Achieved Expectations (3). After learning that Complainant contacted the Acting Assistant Administration concerning her rating, S2 approached Complainant and asked information concerning her concerns. Complainant sent him an email dated March 19, 2020 concerning her 2019 performance rating and other concerns. He informed the Office of Professional Responsibility (OPR) of Complainant’s concerns but she did not want to pursue the issue through OPR. Regarding the claim that on February 27, 2020, she was excluded from team meetings, S2 stated that he was not aware of any such exclusion. S2 further stated if Complainant was excluded, the action was unintentional. Regarding Complainant’s claim that on March 10, 2020, performance goals “that are normally written by supervisor and employee were written by Senior Leaders,” S2 explained that as a supervisor, he attempted to standardize performance to ensure alignment with Division, Directorate, and Agency strategic and operational goals and objectives. S2 stated that he forwarded his performance goals and objectives to the staff and requested that staff members develop and align their goals and objectives to him. During discussions with the staff members, he informed them the need to modify the goals, objectives, specific tasks, and performance expectations as necessary. S2 stated that he and Complainant discussed the goals and he informed her that the goals and objectives “are a living document and subject to modification along with specific performance tasks” based on their discussions. Moreover, he stated that Complainant modified her performance goals. Regarding Complainant’s allegation that on March 19, 2020, management ignored Complainant’s emails, S2 denied ignoring Complainant’s emails. S2 acknowledged that he did not move as fast as Complainant preferred. S2 asserted, however, that he sought guidance from other sources, and based upon the guidance he had received, he informed Complainant of the multitude of resources to assist in resolving her concerns. Beyond her bare assertions, Complainant did not produce any evidence that the disputed events either occurred as alleged or that the proffered reasons provided by the management witnesses for the actions were a pretext masking discriminatory or retaliatory animus. Instead, the image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. 2021003845 5 However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the management officials involved in the disputed matters were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination 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 2021003845 6 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. 2021003845 7 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 December 9, 2021 Date