[Redacted], Susan D., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Mar 29, 2022

Appeal No. 2022000017 (E.E.O.C. Mar. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan D.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2022000017 Hearing No. 570-2021-00697X Agency No. DEA-2020-00336 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 2, 2021 final order concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 was employed by the Agency as a Government Information Specialist, GS-0306-12, at the Agency’s Freedom of Information Act Office at the Agency’s Headquarters in Arlington, Virginia. On February 5, 2020 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (53) and reprisal (prior EEO protected activity) when: (1) between 2019 to the present, she was subjected to a hostile work environment when, among other things: (a) she was called into work during the government furlough, (b) she was sent emails that were hostile and degrading, (c) she was issued a warning memorandum for performance and conduct, (d) she was notified that she was prohibited from coming to the office on weekends even though she was not requesting compensatory time or overtime, (e) she was called into a meeting with her Section Chief and Assistant Deputy about 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. 2022000017 2 the policy for calling in when tardy, (f) she was subjected to interrogation by the Deputy Assistant Administrator when she met with him seeking his assistance, and (g) on or about November 6, 2019, she received her performance appraisal in which her rating was “Successful: rather than “Excellent”; and (2) she was discriminated against based on reprisal (prior EEO protected activity) when: (a) between January 17 and 31, 2020, she was issued a leave restriction memorandum; and (b) on March 23, 2020, her supervisor verbally attacked her, citing that she had left her hanging by not getting back to her over a work-related matter; blamed her for the way management has treated her; and complained to her about her EEO complaint saying “nobody is harassing you.” After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. In the decision, the AJ determined that Agency officials articulated legitimate, nondiscriminatory reasons for its actions. Regarding 1(a), it was undisputed that Complainant was called into work on January 4, 2019 during the government furlough, but then later in the day instructed to return home. It was also undisputed that all employees who had been called in, including Complainant, were instructed to return home later the same day after receiving clarifying information from upper management. With regard to claims 1(b) and 1(c), it is undisputed that on May 15, 2019, Complainant received an email from her supervisor at the time (S1) that stated that she wanted to work with Complainant in closing some of her older cases. S1 and Complainant exchanged additional emails regarding Complainant’s work performance and overdue assignments. On June 14, 2019, the Section Chief issued Complainant a memorandum of warning stating that Complainant’s recent email communications with S1 were “neither productive nor professional” and noting that S1 had given Complainant “sufficient time to close two cases and complete [her] monthly case status/litigation report on time.” The Section Chief further stated that she expected Complainant “to follow supervisory instructions, turn in all tasks by the established due date, and to conduct yourself in a professional manner with all [Agency] employees, to include supervisory personnel.” Regarding 1(d), Complainant claimed that she requested to go into the office on the weekend to collect her personal belongings in anticipation of an office move and was told she could not do so without first requesting compensatory time or overtime. Complainant’s first-line supervisor at the time (S1-2), however, explained that Complainant had been seen in the office on the weekends and as a result she sent Complainant an email reminding her of the procedure for requesting additional work hours. As to claim 1(g), on November 6, 2019, Complainant received a “Fully Successful” rating for fiscal year 2019 rather than “Excellent.” According to the Agency, and Complainant conceded, that she also received a Fully Successful rating for fiscal year 2018. 2022000017 3 With regard to 1(e), on January 31, 2020, the Section Chief and the Deputy to the Deputy Assistant Administrator discussed with Complainant her failure to report to work on January 16, 2020, and her late arrival on two other occasions. Complainant admitted that she was late, or did not show up, on at least two, if not three occasions in January 2020 and that rather than notifying her supervisors, she contacted her coworkers to ask them to relay the message. As a result, the Section Chief issued Complainant a memo with the subject, “Work Policy and Leave Policy,” requiring Complainant to put in a leave request at least two days in advance as noted in (claim 2(a)). Regarding claim 1(f), it is undisputed that in mid-January 2020, Complainant met with the Deputy Assistant Administrator to discuss her concerns about the “toxic” work environment. Complainant believed that he dismissed her concerns and scrutinized her every word, leading her to believe the entire meeting had been a set up. As to claim 2(b), on March 23, 2020, the first day of mandatory COVID telework, Complainant alleged that S1-2 “went off” on her and yelled at her, and then made reference to Complainant’s EEO complaint when she said, “Nobody’s bothering you, nobody’s harassing you.” It was undisputed that at the time, Complainant had sought S1-2’s assistance with problems she was having accessing what she needed to do in order to work at home. According to S1-2, she was frustrated with Complainant for not notifying her earlier that she did not have internet at home and then by her lack of communication with her on that day. S1-2 asserted that her “nobody” comment was in response to Complainant’s assertions that she was being micromanaged and harassed. The AJ concluded that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the conduct at issue was based on discriminatory or retaliatory animus. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2022000017 4 In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. 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 factfinder could not find in Complainant’s favor. 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 Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 2022000017 5 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 March 29, 2022 Date