[Redacted], Tina C., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Oct 5, 2022

Appeal No. 2021003665 (E.E.O.C. Oct. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tina C.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021003665 Hearing No. 410-2019-00025X Agency No. 63-2018-00064 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 21, 2021 final order 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. Complainant worked as a Field Representative, GG-0301-04, at the Agency’s Regional Office in Atlanta, Georgia. She was hired on a temporary basis with her term of employment not to exceed September 16, 2017. Complainant was retained, however, through October 17, 2017. Complainant worked on the American Housing Survey (AHS) in which she listed units at specific addresses, interviewed respondents by personal visit or telephone, and completed re-interviews. Complainant worked out of her home in Biloxi, Mississippi. On February 14, 2018, Complainant filed a formal EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African/South American), national origin (African/South American), religion (Muslim/Jewish), sex (female), color (brown) and in reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003665 2 1. On unspecified dates, the Field Supervisor who served as her first-line supervisor (S1) and the Regional Survey Manager who served as her second-line supervisor (S2) retaliated against Complainant for her previous EEO activity by delaying the issuance of her separation papers for five months, falsely claiming that she had resigned, and by not reimbursing her for mileage and hours worked; and 2. On unspecified dates, S1 subjected Complainant to a hostile work environment by making “direct, discriminating comments against her [protected EEO classes].” Complainant claimed that on June 25, 2017, she spoke with her immediate supervisor (S1) to organize training for the AHS. Complainant stated that S1 asked her where she lived and suggested that they meet at the Cracker Barrel in Gulfport, Mississippi. Complainant claimed that she told S1 that she was new to the area and did not eat out. Complainant claimed that S1 began to berate her saying “Why do you not know what Cracker Barrel is and where it is?” Additionally, Complainant alleged that S1 said “What do you eat if you don’t eat out…[w]e are Americans and in America we all know and eat at Cracker Barrel.” Complainant alleged that S1 told her to figure out “where an All-American restaurant Cracker Barrel is located and meet me there at 10:00 a.m. on June 27th Tuesday for your first on the job training day.” Complainant claimed that on June 27, 2017, she took a break with S1 and went to a Five Guys restaurant. Complainant claimed while there, she and S1 talked about several job matters. Complainant claimed that S1 said that Complainant’s second-level supervisor (S2) was a “male chauvinist pig” and hard to work for and that Agency leadership was difficult to work with. Complainant alleged that on August 17, 2017, she went to S1’s house for a meeting and to turn in paperwork and equipment as the AHS had ended. Complainant claimed that she waited at the door for 10 minutes before S1 answered. When S1 opened the door, Complainant claimed that she was rude and aggressive. Further, Complainant alleged that she asked S1 questions about her timesheet and equipment and S1 angrily responded “Look I don't have time to deal with you nor do I care about you black people! If it comes to me or my job my family, it's me and my job every time. You people make me sick!" S1 denied making any of the comments Complainant alleged. S1 testified that she never made the comment about S2 as he is one of the “nicest and kindest” people she knows. Regarding the August 2017 incident, S1 testified that she never made the alleged statements, but admitted that she probably acted rude toward Complainant because Complainant kept insisting on speaking with her right then about time and mileage while she was on a mandatory conference call. S1 testified that Complainant kept interrupting her and insisting they speak right then because Complainant was in a hurry to go out of town. S1 testified that she told Complainant that she would call her after the conference call was over and that she could not submit any further time and attendance for her as the survey was closed and only S2 could submit time and attendance after the close of the survey. 2021003665 3 Complainant claimed that she reported the harassment to S2 and other officials, but management was slow to respond. Complainant alleged that when she heard from S2 and told him about the environment S1 had created and that she felt uncomfortable and intimidated, S2 tried to defend S1. S2 testified that Complainant complained to him about how S1 was treating her but was unable to provide specifics. S2 stated that Complainant claimed S1 harassed her, but that she was most concerned about the time she spent dropping off her government-issued equipment and wanted to be compensated for that time and mileage. S2 told Complainant to provide him with the time she spent dropping off the equipment and the mileage and he would compensate her for it. S2 testified that he contacted S1 about what Complainant had claimed. S1 admitted speaking to Complainant in a frustrated and angry tone but denied making any discriminatory or derogatory comments. S2 testified that he instructed S1 to be mindful of her tone and to be professional with all employees even though Complainant provided no specifics to him. S2 noted that this was the first time he had received a complaint about S1 in six years of supervising her; therefore, he simply counseled her. S2 testified that Complainant was subsequently compensated for her time and mileage, and she made no other complaints about S1. Complainant stated that the Agency made a false allegation that she resigned from her position. Complainant believed that the reason she is not working anymore is because of her previous complaints to management about S1’s behavior. Agency management explained Complainant’s work on the AHS had ended in July 2017, and there was no more available work for her. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 2, 2018, Complainant requested a hearing. On January 31, 2020, the Agency moved for summary judgment. On June 12, 2020, the AJ issued a decision granting partial summary judgment in favor of the Agency with respect to incident (1). The AJ held a hearing on November 5, 2020, regarding claim (2). On May 10, 2021, the AJ issued a decision finding that Complainant was not subjected to discrimination or reprisal as to claim (2). The Agency subsequently issued a final order fully adopting the AJ’s decisions. ANALYSIS AND FINDINGS Summary Judgment - Incident (1) 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 2021003665 4 “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). 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. Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since Agency management articulated legitimate and nondiscriminatory reasons for their actions regarding Complainant’s separation and reimbursement. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). A standard-form 50 notice of personnel action documented that Complainant was terminated effective October 13, 2017. IR 170. The form says nothing about a resignation. IR 73. Apparently, an EEO specialist who was working with Complainant mistakenly characterized Complainant’s October 2017 termination as a resignation. IR 72, 80. Furthermore, the date of the document indicates that Complainant was retained for approximately one month after her not-to-exceed date, due to the need to finish the survey and return equipment. S1 and S2 averred that Complainant had been reimbursed for both mileage and hours worked. IR 76, 133, 151. Thus, any delay in issuing the official personnel documentation was due to the collection of Complainant’s work equipment and payment of outstanding hours/mileage. To move forward with a hearing, Complainant must raise a genuine issue of material fact as to whether the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by S1 or S2 or which would cause us to question their truthfulness as 2021003665 5 witnesses. Moreover, Complainant herself admitted that she was eventually reimbursed for all mileage and hours that she had worked. IR 63. Ultimately, we agree with the AJ that Complainant failed to identify an evidentiary dispute sufficient to raise a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order with respect to incident (1), because the Equal Employment Opportunity Commission Administrative Judge’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Decision After a Hearing - Incident (2) Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Hostile Work Environment To establish a claim of discriminatory or retaliatory 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 classes; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). We find that Complainant satisfies the first two prongs of the Henson test. She is a member of all of the classes protected by Title VII. The conduct to which she was allegedly subjected, demeaning comments from a supervisor about her membership in those classes, was certainly unwelcome from her own, subjective viewpoint. The antidiscrimination statutes that the Commission enforces are not civility codes, however. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant must therefore present enough evidence to show that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in 2021003665 6 Complainant's position would have found the conduct to be hostile or abusive. Complainant must also show that the conduct of S1 and the other named officials was motivated by unlawful considerations of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, can the question of Agency liability for discriminatory harassment present itself. Applying the third prong of the Henson test, we note that indicators of discriminatory intent or motive include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint or unexplained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked why she believed that she had been subjected to discriminatory harassment by S1, Complainant testified that S1 made such comments as “all Americans eat at Cracker Barrel,” “[S2] is a male chauvinist pig who is hard to work for,” “I don’t care about you Black people,” and “why are you wearing that [referring to Hijab].” IR 56-60; HT 7-9, 14-18, 20-21, 24-25, 29-36. S1 denied Complainant’s accusations. Although S2 counseled S1 after Complainant reported the incidents to him, he testified that when he asked Complainant to describe S1’s allegedly discriminatory conduct, she did not provide specifics and did not mention anything about race, color, or any other protected classes. IR 74, 76, 78, 130-31, 137-41, 151-54; HT 61-68. None of the conversations during which S1 allegedly made her comments were witnessed by anyone else, by Complainant’s own admission. IR 58. In light of Complainant’s failure to establish that S1 actually made the comments attributed to her, we find it unnecessary to address the fourth and fifth prongs of the Henson test. Accordingly, the Commission finds that substantial record evidence supports that Complainant was not subjected to a discriminatory hostile work environment as alleged. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or a hostile work environment by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision as it pertains to incident (2). 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 2021003665 7 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. 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 2021003665 8 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 October 5, 2022 Date