[Redacted], Tammi C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Feb 15, 2022

Appeal Nos. 2020004123, 2020005337 (E.E.O.C. Feb. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal Nos. 2020004123, 2020005337 Hearing No. 550-2018-00290X Agency Nos. USM-2017-00340, USM-2018-00894 DECISION Complainant filed two separate appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from Agency final actions concerning her equal employment opportunity (EEO) complaints 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. Pursuant to 29 C.F.R. § 1614.606 we exercise our discretion to consolidate both appeals herein. BACKGROUND Complainant worked as an Administrative Officer, GS-13, with the United States Marshals Service (USMS) of the Northern District of California, at the Agency’s facility in San Francisco, California. Report of Investigation Agency No.USM-2017-00340 (ROI 1) at 20. Complainant had been employed with the Agency for 26 years or so. ROI 1, at 48. The Supervisory Deputy (male, Caucasian) was assigned as Complainant’s immediate supervisor. 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. 2020004123, 2020005337 2 The Assistant Deputy Chief (male, Caucasian) worked as Complainant’s second-level supervisor, and the U.S. Marshall for the Northern District of California (male, Caucasian) (USM) served as Complainant’s third-level supervisor. Complainant served as the primary witness for her coworker’s (“C1”) (female, Asian) EEO complaint filed on November 9, 2010, wherein C1 accused a management official of subjecting her to a hostile work environment. In Erline S. v. Dep’t of Justice, EEOC Appeal No. 0120160618 (Feb. 22, 2018), we found that C1 established that she was subjected to a hostile work environment based on her sex and reprisal. We specifically cited to Complainant’s March 23, 2015, affidavit in our decision noting that Complainant observed C1 being afraid and distressed of the responsible management official, after C1 reported that the responsible management official grabbed her and caressed her back while she was in an office. We noted that Complainant observed, among other things, that C1 would return in tears because male supervisors would give her "intimidating stares" when she entered each section office as if she did not have permission to walk into those sections. Complainant believed that the USM and other management officials began to subject her to retaliation and intimidation thereafter as a result of her support and participation with regard to C1’s EEO complaint. Complainant specifically averred that on July 5, 2016, there was an incident when the USM was conducting a swearing-in ceremony, and he wanted to use the large conference room. ROI 1 at 61-63. She averred that when the USM asked her to open the large conference room door, she could not remember the combination so she said she would have to ask C1 for the combination. Id. Complainant attested that the USM then became upset with her and said he wanted the door combination immediately. Id. She also attested that the USM said to her that her behavior was unacceptable, and said she needed to be written-up for insubordination. Id. at 63. In response, the USM attested that without management's knowledge or authorization, Complainant had changed the combination to the exterior conference room located outside of the Administrative Office. ROI Agency No. USM-2018-00894 (“ROI 2”) at 83. The USM explained that when he asked for the combination, Complainant initially refused, saying that no one could have the combination, including him or the Chiefs. Id. The Civil Clerk (female, Caucasian), who witnessed the July 5, 2016, incident explained that when the USM asked them to open the conference room door, he was told that it would just be a moment. ROI 1 at 177-78. The Civil Clerk observed that the USM became irate and asked what was taking so long. Id. The Civil Clerk estimated that it took C1 less than two minutes to walk the USM to the conference room to give him the code to open the door. Id. The Civil Clerk then stated that she, Complainant, and C1 were called into the conference room by the Chief Deputy and were told that they were undermining the USM’s authority. Id. 2020004123, 2020005337 3 Complainant also described an incident that occurred on October 24, 2016, wherein the Supervisory Deputy informed all staff members that the district court was complaining about the location of their office date stamp, which had been covering the docket case number. Id. at 52- 53. According to Complainant, when she mentioned to the Supervisory Deputy that she had asked the Civil Clerk to confirm with the district court, the Supervisory Deputy became angry with Complainant, his face turned red, his hands were shaking, and he got within an inch of her face. Id. Complainant believed that the Supervisory Deputy was going to physically hit her. Id. Complainant further thought that the Supervisory Deputy was trying to intimidate and scare her, and she thought that he enjoyed seeing her back away from him. Id. The Civil Clerk explained that Complainant was concerned with the Supervisor Deputy’s request regarding the date stamp, so she was told to go to the district court for clarification. Id. at 179-80. The Civil Clerk observed that the Supervisory Deputy then became upset at Complainant, his face turned red, he started to yell at Complainant, telling her that he does not need to be second- guessed and that Complainant was undermining his authority. Id. The Civil Clerk averred that when she heard the Supervisory Deputy, she came out from her workspace to where she could observe the interaction between them. Id. The Civil Clerk attested that the she saw that the Supervisory Deputy’s face was close to Complainant’s face and he was yelling at her. Id. The Civil Clerk continued to recall that Complainant was backing away from the Supervisory Deputy, but he continued walking towards her and yelling at her for a couple of minutes. Id. The Senior Inspector, who also observed the October 24, 2016, incident, recalled that she was on the telephone speaking with her sister when the Supervisory Deputy started yelling at Complainant. Id. at 197-98. The Senior Inspector stated that her sister, who was on the phone with her, heard the yelling and asked what was happening. The Supervisory Inspector observed the Supervisory Deputy using profanity towards Complainant and recalled that the incident lasted no more than five minutes. Id. The Senior Inspector stated that Complainant then came to her office, wherein she observed Complainant crying, shaking, and saying she was afraid that the Supervisory Deputy was going to hurt her. Id. The Senior Inspector attested that she then reassured Complainant that the Supervisory Deputy was not going to hurt her and that he was just upset. Id. The Assistant Deputy Chief subsequently spoke with the Supervisory Deputy about his behavior and attested that the Supervisory Deputy admitted using profane language with Complainant. Id. at 111. The Assistant Deputy Chief averred that he counseled the Supervisory Deputy on office decorum and the matter was referred to Internal Affairs (IA) for investigation. Id. Complainant also maintained that she and C1 were provided excessive work assignments and that they had been performing duties that were previously done by five employees. Id. at 66-70. She averred that when she complained to the USM and the Chief Deputy about their work assignments, they remarked that if they reduced C1’s grade-level, they could hire five Administrative Assistants; or if Complainant and C1 retired, they could hire a complete administrative staff. Id. 2020004123, 2020005337 4 Complainant further stated that on January 20, 2017, the USM told her she was the subject of an internal investigation, and the USM presented her with a document to sign, which noted that she was the subject of an administrative investigation concerning an incident regarding the “Misuse of position: Retaliation.” Id. at 73-74, 231. The document also asked Complainant whether she intended to acquire a representative and prepared to answer work related questions 72 hours from the date and time of the instant notification. Id. According to Complainant, the USM initially refused to allow her to read the document before signing it, telling her not to worry about it. Id. Complainant stated that the USM then asked her if she had a lawyer, if she was in the Union, or if she had a Representative. Id. Complainant attested that the USM eventually provided her with a letter, notifying her that she was the subject of an investigation. Complainant, however, believed that the investigation was initiated in retaliation for her reporting the Supervisory Deputy’s October 24, 2016, behavior towards her. Id. However, according to the USM, a contract employee (female) complained that Complainant and C1 did not like her and were treating her differently. ROI 2, at 34. The USM averred that Complainant was then instructed to refrain from engaging in any work activity with the contract employee. Id. But he later learned that Complainant had contacted Agency headquarters in an attempt to have the contract employee terminated. Id. He explained that he contacted Internal Affairs (IA) and an investigation into the matter was conducted. Id. The Assistant Deputy Chief also averred that the contract employee had complained to another supervisor that Complainant had been subjecting her to a hostile work environment. Id. The Assistant Deputy Chief further recalled that Complainant provided a written reprimand of the contract employee to C1 who did not have a need to know about the reprimand and should not have been in possession of the document. Id. The Assistant Deputy Chief additionally explained that Complainant was involved in another incident wherein C1 contacted the Federal Protective Services (FPS) regarding someone breaking into her office without consulting with management. Id. at 35. The Assistant Deputy Chief attested that both Complainant and C1 stated in separate IA interviews that he told C1 to contact FPS. Id. But the Assistant Deputy Chief maintained that he was not contacted by C1 and not aware of the incident until after FPS had been contacted. Id. On December 15, 2017, IA issued its investigative report regarding the allegations that Complainant mistreated the contract employee. See OPR-IA Case File No. 17-0257. In its report, IA noted, in pertinent part, that Complainant sent emails on December 6 and 15, 2016, to the Agency’s Contracting Officer Representative (COR) for the Forfeiture Support Associates (FSA) contract, seeking to have the contract employee removed based on performance and poor behavior. Id. IA additionally noted that C1 sent a nearly identical email to the FSA Manager, alleging behavior and performance issues with the contract employee. Id. IA found that Complainant had provided C1 with the information about the contract employe, noting that witnesses indicated that Complainant included C1 on all emails, phone calls, and decisions, including corrective emails to subordinates. Id. In its investigative report, IA further noted that the contract employee, in her sworn statement, attested that Complainant and C1 began to dislike her due to her friendship with the District Asset Forfeiture Coordinator (DAFC), whom they disliked. Id. 2020004123, 2020005337 5 IA also noted that the contract employee believed that Complainant and C1 felt betrayed by her friendship with the DAFC, and she and the DAFC had to be “very covert” to even go out to lunch together. Id. IA additionally observed that the contract employee said that after she became friends with the DAFC, Complainant suddenly became critical of her use of the gym during her lunch break. Id. IA additionally concluded that on May 16, 2017, C1 called FPS at the direction of Complainant to report that their office had been broken into. Id. IA noted that C1 accused the USM as being responsible, and therefore, she did not report the alleged incidents through her chain-of- command. Id. Due to the results of the IA investigation, the Chief Inspector issued Complainant with a Notice of Proposed 14-day Suspension on March 14, 2018. ROI 2 at 42-49. Therein, the Chief Inspector charged Complainant with “Lack of Candor,” specifying that Complainant wrote a formal reprimand for the contract employee, which Complainant submitted to the COR for action. Id. The Chief Inspector further noted that Complainant provided the written reprimand to C1, who had no responsibility over the contract employee, and C1 then used her personal email to send the reprimand to the FSA Manager. Id. The Chief Inspector also wrote that Complainant denied giving the reprimand to C1 in her statement for the IA investigation, but there was no reasonable explanation for how anyone other than Complainant could have provided the reprimand to C1. Id. The Chief Inspector, therefore, found that Complainant’s assertion that she did not provide the reprimand to C1 lacked candor. Id. In further charging Complainant with “Lack of Candor,” the Chief Inspector observed that Complainant, for the IA Investigation, said that the Assistant Deputy Chief told C1 to call FPS regarding someone breaking into her office. But the Assistant Deputy Chief, as noted above, denied telling C1 to call FPS. Id. As a result, the Chief Inspector determined that Complainant’s assertion that the Assistant Deputy Chief told C1 to call FPS, lacked candor. Id. A second Chief Inspector, after reviewing the Proposed Suspension, sustained the Charge of “Lack of Candor” against Complainant. Id. The Second Chief Inspector however lowered the Suspension to 10- days. Id. Further, according to Complainant, the USM personally obtained an invoice from a county jail even though such invoices are part of her responsibilities as an Administrative Officer. ROI 2 at 73. Complainant maintained that she was able to pay the invoice on time, but the USM questioned her about the payment. Id. Complainant believed that the USM was upset that he could not use the late payment as progressive discipline against her. Id. In response, the USM averred that the invoices were related to the installation of new security cameras at a certain jail and the county jail performed the work, submitting invoices for payment in two phases. Id. at 85. The USM explained that when he received the invoices, he merely brought them to Complainant for payment since it was a rather unique transaction. Id. Complainant additionally maintained that the USM informed her that outside personnel, including the Assistant Chief, would be coming to help her with her duties. Id. at 73. 2020004123, 2020005337 6 According to Complainant, the Assistant Chief told her that he was there to assess her work, which she contended was far different than assisting her with her work. ROI 2 at 73. She asserted that at no time did management tell her that she was going to be assessed. Id. Complainant averred that the Assistant Chief told her that the EEO process would take too long and she might as well retire and enjoy her life. Id. The Assistant Chief attested, however, that he did not recall having any conversations or communications with management regarding Complainant engaging in the EEO process or any concerns related to Complainant’s work performance. Id. at 106-108. The Assistant Chief further denied saying anything about Complainant’s retirement or EEO activity in the manner alleged by Complainant. Id. Agency No. USM-2017-00340 Meanwhile, on January 26, 2017, Complainant contacted an EEO Counselor and filed a formal EEO complaint on March 1, 2017, alleging that the Agency discriminated against her and subjected her to harassment from July 22, 2016, through January 20, 2017, on the bases of race (Asian), sex (female), age (53), and reprisal for prior protected EEO activity.2 At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ subsequently issued a decision without a hearing finding no discrimination or harassment in the Agency’s favor. The AJ specifically found nothing in the record to raise an inference of discriminatory harassment based on race, age, or sex.3 The AJ found no evidence that any management official was motivated by discriminatory animus. The AJ further determined that Complainant did not show that management’s actions were severe or pervasive enough to rise to the level of a hostile work environment The Agency issued its final order implementing the AJ’s decision on May 12, 2020. Agency No. USM-2018-00894 Complainant filed a second formal EEO complaint on July 17, 2018, alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (Asian) and reprisal for prior protected EEO activity when: 1. On June 5, 2018, she received a 10-day suspension for “Lack of Candor”; and 2 We note that Complainant has alleged some incidents of harassment towards her in the relevant ROI that occurred before July 22, 2016. We however decline to address any of these matters as Complainant has not challenged the framing of her complaint. 3 The AJ did not address reprisal as a basis in her analysis. 2020004123, 2020005337 7 2. From May 16-18, 2018, Management began scrutinizing Complainant’s work and falsely accusing her of not completing an assignment regarding a payment in a timely manner Following the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency specifically found, with respect to claim 1, that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretextual based on her protected classes. Namely, that Complainant provided false statements for the IA investigation, including wherein she stated that she had not provided the reprimand of the contract employee to C1. The Agency noted that the evidence reflected that Complainant provided a copy of the reprimand to C1, as there was simply no other viable explanation for how C1 obtained the document. The Agency observed that the IA Investigator wanted know how C1 and the contractor obtained the reprimand, but Complainant provided disingenuous answers as to what she knew about the matter. The Agency further noted that, with respect to the second specification, that Complainant again made a false statement to the IA Investigator. The Agency additionally found no evidence to support Complainant’s allegations that the Assistant Chief instructed Complainant to retire or that he mentioned Complainant’s EEO activity in the manner alleged by Complainant. The Agency found no evidence showing that the Assistant Chief said or did anything that would dissuade a reasonable employee from engaging in the EEO process. The Agency further found that Complainant did not establish that she was subjected to a hostile work environment, finding nothing in the record to reflect that the management was motivated by discriminatory or retaliatory animus. CONTENTIONS ON APPEAL (Appeal No. 2020004123) On appeal, Complainant, through her attorney, argues that the AJ failed to consider the evidence of racial discrimination she presented, including the fact that C1 who is also a female, Asian, faced similar biases and treatment from management. Complainant contends that she was treated less favorably than male employees and that management has attempted to bully and scare her. She maintains that the USM and the Supervisory Deputy continuously sought to degrade, demean, and intimidate her when she was simply trying to perform the duties of her position. Complainant asserts that there were many instances where management subjected her to profanity and anger, making her feel as though she would be physically assaulted. Complainant additionally asserts that the AJ erred in failing to address her claim of reprisal when she served as a witness for C1’s EEO complaint.4 4 We note that while the AJ did not address reprisal in her decision, the error was harmless, as the record contains sufficient evidence for us to adjudicate Complainant's reprisal claim, as discussed below. 2020004123, 2020005337 8 According to Complainant, the USM previously asked her to talk to her coworker about dropping her EEO complaint. Complainant believes that she was subjected to reprisal for her participation in C1’s EEO complaint when the USM provided her with the documentation on January 20, 2017, telling her that she was the subject of an IA investigation for the misuse of her position. In response, the Agency argues that Complainant failed to establish a prima face case of discrimination based on any of her protected classes, as management’s actions towards Complainant did not amount to an adverse action. In asserting that Complainant did not establish a prima facie case of reprisal, the Agency argues that management had no knowledge that Complainant served as a witness for C1’s EEO complaint. The Agency also argues that Complainant did not show that management’s actions were severe or pervasive enough to rise to the level of a hostile work environment or that it was motivated by discriminatory or retaliatory animus. ANALYSIS AND FINDINGS (Appeal No. 2020004123) Summary Judgment 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). EEOC's decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 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. See 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. See 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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. 2020004123, 2020005337 9 Hostile Work Environment Complainant has alleged a hostile work environment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. An abusive or hostile working environment exists “when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment.” Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep't of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996). To prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). The statutory anti-retaliation provisions further prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Retaliation Guidance. In the instant case, for example, Complainant has asserted that the USM became upset and angry with her because she could not remember the combination to the large conference room, and he then threatened that she could be written-up for insubordination. Complainant has further alleged, among other things, that the Supervisory Deputy’s behavior towards her regarding the date stamp matter on October 24, 2016, amounted to a hostile work environment. 2020004123, 2020005337 10 While Complainant’s work environment may not have been ideal, we find that she not established that management’s actions towards her rose to the level of a hostile work environment. We find the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. We note for example, that the Supervisory Deputy’s confrontation with Complainant on October 24, 2016, was an isolated incident that lasted no more than five minutes. While the Supervisory Deputy may have used profanity towards Complainant, there is no evidence reflecting that any of the language used regarded any of Complainant’s protected classes. We note that anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a hostile work environment. Complainant v. Dep't of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). We find that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Furthermore, we find that Complainant has not shown that the Agency's actions were motivated by discriminatory or retaliatory animus. For example, we can find no evidence in this case reflecting that the Supervisory Deputy’s confrontation with Complainant on October 24, 2016, was due to her race, sex, age, or protected EEO activity. For example, witnesses herein did not attest to a belief that the Supervisory Deputy actions were due to Complainant’s protected classes. While not dispositive, we note that the Senior Inspector said she did not believe that the Supervisory Deputy acted with any discriminatory animus based on race, as he was married to an Asian female. ROI 1 at 16. We also note that Complainant has further alleged that the USM subjected her to harassment when on January 20, 2017, he told her she was the subject of an IA Investigation. However, the record reflects that the IA Investigation was initiated because a contract employee complained about Complainant’s treatment of her and it was later learned that Agency headquarters had been contacted through Complainant in an attempt to have the contract employee removed. Based on the record, we find that Complainant has not shown that the USM was motivated by discriminatory or retaliatory animus in referring Complainant to IA for investigation. CONTENTIONS ON APPEAL (Appeal No. 2020005337) On appeal, Complainant, through her attorney, asserts that she was subjected to derogatory comments based on her race and sex and management would become upset with her due to her accent. Complainant also maintains that management held stereotypical beliefs about her work ethic and behavior. 2020004123, 2020005337 11 She contends that she was treated differently than others outside of her protected classes and believes that management began scrutinizing her work due to her protected classes as well. Complainant maintains that the USM was so determined to set her up for additional progressive discipline that he held back a jail bill invoice, so that the district would not be able to complete final payment in a timely fashion. Complainant further believes that she was provided with the suspension due her participation as a witness in C1’s EEO case. She argues that the Agency authorized a forensic examination of work computer, which debunked the IA’s Investigation that she and C1 sent the reprimand documentation of the contract employee to outside sources. Complainant additionally contends that she discovered one of her file cabinets unlocked and that someone had accessed C1’s files that broke one of her stamps, and so she reported the matter to the Assistant Deputy Chief who instructed them to call FPS. Complainant maintains that the Assistant Deputy Chief lied for the IA investigation by saying that he was not contacted by them about contacting FPS. In response, the Agency requests that we affirm its final decision, finding no discrimination. The Agency notes that it articulated, legitimate nondiscriminatory reasons for its actions which Complainant did not establish were pretextual. The Agency, for example, asserts that there is no evidence to reflect that Complainant was subjected to any derogatory comments and that Complainant even conceded in the record that she was not subjected to any comments due to her race or EEO activity. The Agency further notes that the 10-day suspension was handled by the Chief Inspector who was not located in Complainant’s district or part of Complainant’s chain-of- command. The Agency also argues that while the USM may have questioned Complainant about payment of the invoices at issue, there was nothing to suggest that the USM’s actions were in any way related to Complainant’s race or EEO activity. ANALYSIS AND FINDINGS (Appeal No. 2020005337) Standard of Review 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 (EEO MD-110), at Chap. 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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020004123, 2020005337 12 She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affs., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her protected classes, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions with regard to claim 1. We note that the Chief Inspector noted that Complainant provided the written reprimand to C1, who had no responsibility over the contract employee. Then, C1 used her personal email address to send the reprimand to the FSA Manager. The Chief Inspector further wrote that Complainant denied giving the reprimand to C1 during the IA investigation, but there was no reasonable explanation for how anyone other than Complainant could have provided the reprimand to C1. The Chief Inspector, therefore, found that Complainant’s assertion that she did not provide the reprimand to C1 lacked candor. The Chief Inspector additionally noted that Complainant, for the IA Investigation, said that the Assistant Deputy Chief told C1 to call FPS regarding someone breaking into her office. But the Assistant Deputy Chief denied telling C1 to call FPS. As a result, the Chief Inspector determined that Complainant’s assertion that the Assistant Deputy Chief told C1 to call FPS lacked candor. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant maintains, in pertinent part, that she was provided with the 10-day suspension due her participation as a witness in C1’s EEO case. She argues that the Agency authorized a forensic examination of work computer, which debunked the IA’s Investigation that she and C1 sent the reprimand documentation of the contract employee to outside sources. Complainant additionally contends that she discovered one of her file cabinets unlocked and that someone had accessed C1’s files that broke one of her stamps, and so she reported the matter to the Assistant Deputy Chief who instructed them to call FPS. Complainant maintains that the Assistant Deputy Chief lied for the IA investigation in saying that he was not contacted by them about contacting FPS. Upon review, we find that Complainant has not established that the Agency's legitimate, nondiscriminatory reasons for issuing her the suspension were pretextual. In so finding, there is no dispute that the IA’s Investigation determined that Complainant sent emails on December 6and 15, 2016, to the COR for the FSA contract, seeking to have the contract employee removed. We note that IA found that Complainant had provided C1 with the information about the contract employee, noting that witnesses indicated that Complainant included C1 on all emails, phone calls, and decisions. including corrective emails to subordinates. 2020004123, 2020005337 13 There is also no dispute that IA additionally concluded that on May 16, 2017, C1 called FPS at the direction of Complainant to report that their office on been broken into. IA determined that Complainant did not report the alleged incidents through her chain-of-command. Here, there is simply no evidence in this case that the Agency’s decision to suspend Complainant was due to discriminatory or retaliatory animus, as the deciding officials were simply relying on the IA’s investigation in evaluating whether to discipline Complainant. Moreover, both deciding officials were not in Complainant’s chain-of-command and there is no evidence showing that they were aware of Complainant’s prior EEO activity. In addition, there is simply nothing to support Complainant’s assertion that a forensic examination debunked the IA’s investigation. To the extent that Complainant challenges the findings in the IA’s Investigation, the Commission notes that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Moreover, while Complainant may have disagreed with IA’s assertions, we find it reasonable for the deciding officials to have relied upon the IA’s report in taking disciplinary action against Complainant. Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). To prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). The statutory anti-retaliation provisions further prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Retaliation Guidance. 2020004123, 2020005337 14 Complainant's harassment claim is precluded based on the Commission's finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus with regard to claims 1. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). With respect to claim 2, we find that Complainant has not established that management’s actions severe or pervasive enough to rise to the level of a hostile work environment. Also, we find that Complainant failed to establish that the conduct would be reasonably likely to deter her from engaging in protected activity. For example, there simply no evidence here that the Assistant Chief pressured Complainant to retire or that he mentioned Complainant’s EEO activity in a manner to dissuade her from participating in the EEO process. We note that the Assistant Chief attested that he did not recall having any conversations or communications with District Management regarding Complainant engaging in the EEO process or any discussions related to Complainant’s work performance. The Assistant Chief further denied saying anything about Complainant’s retirement or EEO activity in the manner alleged by Complainant. We note that Complainant withdrew her request for a hearing before an EEOC Administrative Judge with respect to this matter, and as a result we do not have the benefit of an Administrative Judge's credibility determinations of this witness. Upon review, we find that Complainant did not establish that she was subjected to a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision, finding no discrimination. 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). 2020004123, 2020005337 15 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). 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. 2020004123, 2020005337 16 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 February 15, 2022 Date