[Redacted], Tabetha M., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020002749 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tabetha M.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2020002749 Agency No. HUD-00050-2019 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 February 5, 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., 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 for the Agency as a Senior Account Executive in Birmingham, Alabama. Complainant filed an formal complaint alleging that the Agency discriminated against her based on color (Brown), age (55), and in reprisal (for “speaking up” to her supervisor and appealing a Notice to Suspend). By letter dated April 11, 2019, the Agency issued a partial acceptance letter. The Agency accepted the following claims for investigation:2 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. 2020002749 2 1. Whether the [Agency] subjected [Complainant] to disparate treatment based on color, age, and reprisal consisting of a discrete act on November 29, 2018, when management issued [her] a Notice of Suspension without pay for 14 days (December 2-15, 2018) for misconduct. 2. When [the Agency] subjected [Complainant] to a hostile work environment harassment based on color, age, and reprisal when: a. On December 3, 2018, [Complainant’s] request to management to rescind [her] 14-day suspension was denied; b. On September 28, 2018, management placed [her] on an Opportunity to Improve Plan; c. On February 20, 2019, management extended the Opportunity to Improve plan until April 5, 2019; d. On June 25, 2018, management accused [her] of lying about a supervisor; e. Beginning in 2017 and continuing, management requires [her] to send proof that data has been entered into appropriate systems; f. Beginning in 2017 and continuing, management obtained access to Complainant’s [Agency] email account an scrutinizes her messages; g. Beginning in 2017 and continuing, management requires her to submit a weekly spreadsheet of completed tasks; h. Beginning in 2017 and continuing, management requires her to submit a Statement of Work (SOW) for every task that she performs. i. Beginning in 2017 and continuing, management requires her to ask permission and to close out tasks in the Asset Management Project System (AMPS); j. Beginning in 2017 and continuing, management constantly berates and chastises her for failure to complete clerical tasks; k. On May 17, 2019, management issued her a Notice of Proposed Removal from federal service; 2 The record reflects that claims 2(k)-2(m) were accepted as amendments to Complainant’s initial complaint 2020002749 3 l. In lieu of removal from federal service, management coerced her to enter into a settlement agreement which lowered her position and grade from Senior Account Executive, GS-1101-13, Step 10 to Account Executive, GS-1101- 12/Step 10, effective July 21, 2019, and m. Management held her responsible for the same portfolio of properties despite her downgrade from GS-13 to GS-12 effective July 21, 2019.3 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In the final decision, the Agency found that claim 2(l), was settled pursuant to a May 2019 settlement agreement. Under a disparate treatment analysis, the Agency found that it articulated legitimate, nondiscriminatory reasons for its numerous actions which Complainant failed to establish pretext for discrimination. The Agency also found that Complainant failed to establish a prima facie case of harassment. Specifically, the Agency reasoned that Complainant did not establish that the Agency’s alleged actions were based on her protected classes. In addition, the Agency found that the alleged incidents were not sufficiently severe or pervasive to create a hostile work environment. The instant appeal followed. Complainant does not submit a statement or brief in support of her appeal. In response, the Agency requests that we affirm its final decision finding no discrimination. Specifically, the Agency argues that all claims, with the exception of claim 2(m), are barred by a settlement agreement because the matters raised in these claims occurred prior to July 21, 2019. The Agency states that while Complainant claims that she was coerced into signing the settlement agreement, the record does not support her assertion. Finally, regarding 2(m), the Agency asserts that it articulated legitimate, nondiscriminatory reasons for its action and that Complainant failed to establish that the articulated reason was pretext for discrimination and/or retaliation. 3 Two additional claims were dismissed for untimely EEO Counselor contact. ROI at 129. Complainant does not expressly contest on appeal the dismissal of these two claims. Thus, we decline to address them further herein. 2020002749 4 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”). All Claims with the Exception of Claim 2(m) We concur with the Agency in finding that all claims, with the exception of claim 2(m), are barred by a July 2019 settlement agreement. Provision 2(e) of the settlement agreement provides, in pertinent part, that: “[e]mployee agrees that her signature on this Agreement constitutes a waiver of any claims accruing through the date of this Agreement…” Based on the foregoing, we find that all claims, with the exception of claim 2(m), are barred by the settlement agreement. Complainant states that she was coerced into signing the settlement agreement. We find, however, that the record does not support her assertion. Because the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set aside. However, the Commission will find the contract void if coercion, misrepresentation, misinterpretation, or a mistake occur during the formation of the contract, making assent to the agreement impossible. See Shuman v. Dep’t of the Navy, EEOC Request No. 05900744 (July 20, 1990). The Commission examines coercion claims with much scrutiny. The party raising the defense of coercion must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. Such a threat may be expressed, implied, or inferred from words of conduct, and must convey an intention to cause harm or loss. A complainant’s bare assertions will not justify a finding of coercion. Lenihan v. Dep’t of the Navy, EEOC Request No. 05960605 (Dec. 5, 1995). While Complainant expressed dissatisfaction with her options of possibly being removed (pursuant to the Notice of Proposed Removal) or being demoted (pursuant to the terms of the settlement agreement), we find this is insufficient to establish coercion. ROI at 258-260. Complainant presents no persuasive evidence, that she was forced to sign the agreement due to coercion. We do not find that management issued an improper threat to Complainant by discussing the possible consequences of the Agency’s Notice of Proposed Removal. See Swanson v. Dep’t of the Navy, EEOC Appeal No. 0120101729 (Aug. 24, 2010), req for recon. den., EEOC Request No. 0520110037 (Dec. 10, 2010) (allegation that management threatened to fire complainant insufficient to establish coercion). 2020002749 5 Furthermore, provision (11) of the settlement agreement provides in pertinent part, that: Employee agrees that she has entered into this Agreement knowingly, freely, and voluntarily, in the absence of coercion or duress…Employee acknowledges that she has fully considered the terms of the Agreement and understands that the terms and provisions herein are intended to create a legal, valid, and enforceable agreement, and that she voluntarily accepts those terms and conditions. Based on the foregoing, we do not find that Complainant was coerced into signing the settlement agreement. Claim 2(m) We now turn to an analysis on the merits for the remaining claim, claim 2(m). Complainant asserts that although she was demoted to a lower grade, her portfolio of properties remained the same. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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 Dep’t of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming arguendo that Complainant established a prima facie case of discrimination regarding this claim, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains an affidavit from Complainant’s supervisor, after Complainant’s demotion in May 2019. 2020002749 6 Therein, her supervisor, during that time, set forth that “after I became Complainant’s supervisor and issued her performance elements for the GS-12 Account Executive position, we discussed the need to risk-rank her portfolio so we could determine the complexity of the work and decide what (if anything) would need to be shifted in assignments. After Complainant risk-ranked the portfolio, it was determined that the portfolio she serviced as a GS-13 Account Executive was adequate to a GS-12 Account Executive, therefore, portfolio changes were not required.” ROI at 742. We further find that Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination. Finally, under a hostile work environment analysis, we find that Complainant failed to establish a prima facie case of harassment. To establish a claim of harassment based on race, sex, disability, age, or reprisal, complainant must show that: (1) he is a member of the 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 the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the instant matter, as set forth above, we found that the Agency articulated a legitimate, nondiscriminatory reason for its action which Complainant failed to establish was pretext for discrimination. Thus, Complainant has not established that the sole remaining claim, claim 2(m), was based on her protected classes. CONCLUSION For the reasons set forth herein, we AFFIRM the Agency’s final decision finding no discrimination. 2020002749 7 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. 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). 2020002749 8 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 June 15, 2021 Date