[Redacted], Vickie T., 1 Complainant,v.Christopher T. Hanson, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003806 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vickie T.,1 Complainant, v. Christopher T. Hanson, Chairman, Nuclear Regulatory Commission, Agency. Appeal No. 2020003806 Hearing No. 531-2016-00312X Agency No. NRC-15-20 DECISION On June 18, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 15, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. During the relevant time, Complainant worked for the Agency as an IT Specialist, GG-13, for Region II in Atlanta, Georgia. On February 26, 2014, Complainant filed a formal complaint alleging she had been subjected to discrimination based on her race (African American), sex (female), and disability, as well as unlawful retaliation for prior protected EEO activity when: 1. She was harassed by the Deputy Regional Administrator for Operations, Region II, Director, Division of Resource Management and Administration (“DRMA”), former Chief, Information Technology Branch (“ITB”) DRMA, also Complainant’s first-level supervisor (“S1”), former Deputy Director, DRMA, and the former Regional 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. 2020003806 2 Administrator for Region II, also Complainant’s fourth-level (“S4”) and fifth-level supervisor (“S5”), between June 2014 and the present as evidenced by the following: a. On September 9, 2014, during a meeting with the Deputy Director, Director, and Deputy Regional Administrator for Operations, Region II, Director, DRMA, she alleged that Deputy Regional Administrator was intimidating and combative. b. On September 10, 2014, Deputy Regional Administrator ignored several emails which Complainant sent to him and stated to Complainant that he was not aware of any allegation by her that former Chief, Human Resources Branch, DRMA or S1 were harassing her at the Director’s behest. c. On September 15, 2014, she alleged that Deputy Regional Administrator for Operations told him during a meeting that he, as well as others, thought Complainant believed she was the only one who was right at the Agency and that everyone else was wrong.2 d. On or about October 16, 2014, her request to transfer to an unspecified position was denied by the Regional Administrator, Region II. e. On November 3, 2014, she was removed from her role as Branch Chief and reassigned to a Team Lead position supervised by S1. f. On November 10, 2014, S1 removed her from team meetings in front of others and told her that she needed six (6) months of experience before she could be acting Branch Chief. On November 11, 2014, S1 then told her that he changed his mind and she was able to attend the meetings and serve as Acting Branch Chief. g. On March 21, 2015, S1 denied her requests to telework while she was recuperating from her illness. h. On April 16, 2015, S1 gave her a mid-year review and she stated he verbally attacked her, asked about her prognosis regarding her health, told her all the things she was not doing right, said she gave off a negative demeanor during this meeting, and continued to drill her about everything he had previously said. i. On July 30, 2015, S1 sent her an email regarding her responsibility to take the lead on an inquiry regarding a furniture order, and not to place the onus on the Financial Management Branch (“FMB”), despite her not having the authority to perform the requested task. 2 Complainant clarified that this meeting occurred on September 10, 2014, not September 15, 2014. 2020003806 3 j. On August 5, 2015, she was not chosen to serve as the Acting Information Resources Branch Chief (“IRB”) position in reprisal for filing her EEO complaint. k. On August 13, 2015, S1 denied her request to telework because he did not believe that she had a full day’s worth of work. l. On August 19, 2015, she requested a lateral reassignment to a non-team leader position and has not received a response from management as of August 21, 2015. m. On August 20, 2015, S1 provided her with a draft performance appraisal for her fiscal year (“FY”) 2015. As of that date, her overall rating was a “Minimally Successful.” That day, she declined to meet with S1 because she believed that she would be verbally “attacked” about her performance. n. On October 29, 2015, she received an overall “Minimally Successful” rating on all elements of her FY 2015. 2. Complainant’s initial request for a reasonable accommodation dated August 28, 2015, and modified on or around September 30, 2015, as a request for full-time telework, was delayed and ultimately on November 4, 2015, not granted in line with the recommendation of her physicians. 3. On June 27, 2014, Complainant asked the former Chief, Human Resources Branch, DRMA, about the counseling she was directed to conduct and was told that she was being difficult. Complainant reported this to the Director, DRMA and the Deputy Regional Administrator for Operations, Region II, and received no response. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ noted that Complainant failed to respond to the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s decision concluding neither discrimination nor unlawful retaliation had been proven. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2020003806 4 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 animus. Here, however, Complainant has failed to establish such a dispute. We note that the AJ’s decision indicates that Complainant did not respond to the Agency’s motion for summary judgment. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, disability or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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, the record simply does not contain adequate evidence of discriminatory motivation or retaliatory animus in any of the events at issue. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style over often fairly common workplace issues that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the management officials involved were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on the AJ’s findings, supported by the evidence of record, that she failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020003806 5 Moreover, the record reflects that while the Agency did not provide Complainant’s reasonable accommodation of preference, it did provide a reasonable accommodation within Complainant’s medical restrictions. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation. 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. 2020003806 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 22, 2021 Date