[Redacted], Tammy S., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003913 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammy S.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2020003913 Agency No. 17-0024-AL DECISION On June 24, 2020, 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 May 22, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer (Program Management), EN-04, at the Agency’s Sandia Field Office (SFO) located in Albuquerque, New Mexico. The SFO Assistant Manager of Programs (S1) was Complainant’s first level supervisor; the SFO Deputy Field Office Manager (S2) was Complainant’s second level supervisor; and the SFO Supervisory General Engineer (S3) was Complainant’s third level 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. 2020003913 2 On February 22, 2017, Complainant filed an EEO complaint alleging that the Agency treated her disparately and subjected her to hostile work environment harassment on the bases of race (Caucasian, Non-Hispanic), sex (female), and reprisal for prior protected EEO activity (2015 EEO complaint) when: 1. on June 19, 2015, the SFO Assistant Program Manager, S1, ignored Complainant’s safety concerns and failed to approve her exit from an Agency class without incurring the personal cost of the training; 2. on July 20, 2015, the SFO Manager (S4) failed to conduct an adequate investigation into the April 7, 2015 email by a male coworker (C1) and failed to review additional information regarding the incident Complainant provided him on November 13, 2015; 3. in August or September 2015, the SFO Supervisory General Engineer, S3, and S1 failed to conduct an adequate investigation into rude behavior by C1 at an August 25, 2015 meeting; 4. in late November 2015, S4 rejected Complainant’s reconsideration request and failed to conduct an adequate investigation into Complainant’s allegations of harassing behavior and an incorrect performance evaluation by S1; 5. during February and March 2016, S1 ignored Complainant’s emails regarding a Contract Performance Report, and sent Complainant a hostile, demeaning, and intimidating email on March 9, 2016, with unfounded accusations; 6. during August 2016, S1 harassed (verbally and in writing) Complainant for two workplace situations that occurred in June 2016; 7. on August 19, 2016, S2 failed to take Complainant’s hostile work environment allegations seriously or timely initiate an investigation following Complainant’s meeting with him; 8. on September 16, 2016, S1 disparaged Complainant’s differing professional opinion and verbally harassed Complainant; 9. on October 19, 2016, S1 verbally reprimanded Complainant in a hostile, intimidating, and accusatory manner and failed to acknowledge her contributions; 10. on November 14, 2016, S1 physically assaulted Complainant during an award reception by walking behind her and forcefully ramming his right elbow or shoulder into her left shoulder, causing Complainant to lose her balance and “lurch forward;” 11. on December 8, 2016, S1 and the Deputy Field Office Manager, S2, marginalized Complainant’s contributions, included a false derogatory statement in her fiscal year (FY) performance evaluation and did not provide an opportunity to rebut/discuss the evaluation; 12. in December 2016, S2 and S4 endorsed two investigations with incorrect, incomplete, and biased information; 2020003913 3 13. on January 19, 2017, S1 issued Complainant a Letter of Expectation that contained false accusations, threats of progressive disciplinary action, and “disparate requirements;” 14. about January 27, 2017, S4 initiated a fact-finding investigation into whether Complainant’s actions or behavior were having a negative impact on Complainant’s Field Office operations; 15. in February or March 2017, S1 excluded Complainant from meetings, was hostile to Complainant during meetings, and sent Complainant emails with unfounded accusations regarding Complainant’s performance and communication skills; 16. on May 2, 2017, S1 gave Complainant a negative mid-year appraisal; and 17. on July 30, 2017, S2 issued Complainant a letter of counseling. The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, management provided the statements that follow. • Complainant requested to attend a Personal Effectiveness seminar by a reputable trainer, other employees attended as well, and then Complainant reported that she felt “uncomfortable” (did not state “unsafe”) with the group activities so management informed her that she might have to personally reimburse the Agency for the training if she left. • S4 stated that Complainant alleged that she was improperly removed from an Integrated Oversight Planning Team (IOPT), other staff denied her allegation and stated Complainant received a time-off award for her work on the IOPT. Management acknowledged that there was tension between Complainant and a coworker, but they thought the matter was fully resolved. • Management spoke with meeting attendees who did not substantiate Complainant’s allegations of rudeness by C1. • S1 summarily rated Complainant as “Fully Meets Expectations” for FY 2015 and information submitted by Complainant did not warrant an increase to “Significantly Exceeds Expectations.” • S1 denied Complainant’s allegations, stating that he did not ignore her email messages and his email to her was not demeaning or hostile. • S1 stated that he communicated with Complainant about managing conflict after two incidents in which coworkers accused Complainant of intimidation and bullying. • S4 stated that he conducted an informal investigation of Complainant’s concerns and they were not substantiated by coworkers. S4 stated that he informed Complainant that a third party can be present whenever she meets with S1. 2020003913 4 • S1 stated that Complainant voiced an opinion in a meeting in a negative way, calling a program “worthless.” S1 stated that he asked Complainant to provide her opinions in a positive manner in the future. • S1 stated that he, Complainant, and a coworker who was collaborating with Complainant on a matter met and Complainant was condescending to the coworker. S1 stated that the coworker asked not to work with Complainant in the future. S1 stated that he met with Complainant the next day and informed her of his observations. • S1 denied assaulting Complainant and stated that a management investigation supports his contentions. The record shows that management conducted a three-week investigation into Complainant’s claim, which did not substantiate her claim. Complainant was allowed to telework during the investigation and beyond. • Management stated that Complainant’s rating accurately reflects her performance and there are times she does not collaborate well with others. Management stated that Complainant received a fair rating and did not request reconsideration. • Management stated that it did not “endorse” the reports but rather accepted the results and used them for decision-making and as a way to move forward. • Management stated that the memorandum was issued based on Complainant’s conduct but was not intended as discipline but to assist Complainant in communicating better with management. • Management stated that it hired an outside factfinder to investigate concerns about Complainant’s alleged derogatory statements about Hispanic culture and the effect her behavior was having on her coworkers. • Management stated that all employees in defense-related program duties were excluded from the National Technology & Engineering Solutions of Sandia meetings due to a conflict of interest. Management noted that this issue was conveyed to employees at an all hands meeting. • Management stated that Complainant’s performance appraisal accurately reflected her performance deficiencies and accomplishments. • Management stated that there was a need to address concerns about Complainant’s behavior in the workplace as expressed by colleagues and the results of investigations. At the conclusion of the investigation, the 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 pursuant to 29 C.F.R. § 1614.110(b). 2020003913 5 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The decision found that Complainant failed to establish disparate treatment or harassment based on discriminatory motives. The instant appeal from Complainant followed. 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2020003913 6 Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, sex or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Summarily, the Agency stated that there was tension in the workplace related to some of Complainant’s actions with coworkers and management, so management had to address. Management accurately rated Complainant’s performance and provided appropriate feedback, both positive and negative aspects. Investigations were conducted regarding Complainant’s concerns and those of her coworkers and decisions were made based on the investigations. Complainant was not singled out for treatment. We find that Complainant failed to show that the Agency’s actions were based on discriminatory motives. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, sex, or reprisal. Even if we consider, individually and in total, the incidents alleged occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 2020003913 7 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). 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. 2020003913 8 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 November 22, 2021 Date