U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Youlanda P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020004317 Agency Nos. HS-FEMA-26861-2016 HS-FEMA-01211-2018 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 19, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 an Emergency Management Specialist at the Agency’s Caller Services and Case Processing Individual Assistance Office in Denton, Texas. On April 6, 2016, Complainant’s first-line supervisor, a Supervisory Emergency Management Specialist (SEMS) (age 54, Black, disability, African American, female, prior EEO activity), sent Complainant an email with instructions, including the use of a size 12 Times New Roman font 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. 2020004317 2 and the demonstration of curtesy, respect, teamwork and cooperation in her correspondence with supervisors, coworkers and customers. Report of Investigation (ROI) 1 at 73. Complainant claimed that on August 2, 2016, the email instruction was retracted, and she was instructed to send all emails in Times New Roman 12; and this written documentation was placed in Complainant’s official personnel folder for a period of 120 days. ROI 1 at 65. On July 6, 2016, SEMS notified Complainant that she had an excessive amount of adherence occurrences for her lunch and breaks, with 50 overages from April 1-June 8, 2016. SEMS informed Complainant that she must adhere to her authorized lunch periods of 30 minutes and another 30 minutes of total breaks in a day. SEMS added that this supervisory instruction remained in effect for 90 days, and if Complainant could demonstrate her ability to comply, SEMS would ease or rescind the instructions after 60 days. ROI 1 at 106-7. On July 21, 2016, Complainant received an email informing her that the Agency was re- implementing the fitness program and participants could request up to six hours per pay period. However, those who teleworked more than six days per period are unable to request fitness hours. ROI 1 at 35-6. Complainant asserted that she was denied the opportunity to participate in the fitness program due to her telework schedule. ROI 1 at 68. Complainant stated that since December 2017, SEMS kept assigning her appeals cases. Complainant averred that she reminded her second-line supervisor, a Supervisory Program Specialist (SPS) (age 52, no disability, prior EEO activity), that she was not trained in appeals because she was out of the office due a surgery when they conducted the training. Complainant contended that she requested that the appeals cases be removed, but SEMS continued to add them to her schedule. ROI 2 at 61. EEO Complaints On October 14, 2016, Complainant filed an EEO complaint (Agency case no. HS-FEMA-26861- 2016) alleging that the Agency subjected her to discrimination and harassment on the bases of race (African American), sex (female), color (Black), disability (physical and mental), and age (65), and in reprisal for prior protected EEO activity, when: 1. on April 6, 2016, Complainant received a written instruction from management for not following instructions on her email fonts, and she was instructed to demonstrate courtesy, respect and teamwork. However, on August 2, 2016, the email instruction was retracted, and Complainant was instructed to send all emails in Times New Roman 12, and this written documentation was placed in Complainant’s official personnel folder for a period of 120 days; 2. on July 6, 2016, Complainant received another written supervisor instruction for time and attendance violations, which was placed in Complainant’s official personnel folder for a period of 90 days; and 2020004317 3 3. on July 21, 2016, Complainant, received an email denying her the opportunity to participate in the Agency’s Fitness Program because of her telework schedule. On April 15, 2018, Complainant filed another EEO complaint (Agency case no. HS-FEMA- 01211-2018) alleging discrimination and harassment on the bases of disability (carpal tunnel) and age, and in reprisal for prior EEO activity, when: 4. since December 2017, management continued to assign Complainant appeals casework, despite her lack of training in the subject, and they refused to remove it from her schedule. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigations and notices of her right to request a hearing before an EEOC Administrative Judge. The Agency noted that Complainant requested a final decision for Agency case number HS-FEMA-26861-2016, and she did not request a hearing or a final decision for Agency case number HS-FEMA-01211-2018. As such, the Agency issued a consolidated final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that management officials provided legitimate, nondiscriminatory reasons for claims 2, 3, and 4, and that Complainant did not prove that the reasons were pretexts for discrimination. The Agency also determined that Complainant did not show that she was subjected to an unlawful hostile work environment for claim 1 because the record did not contain any evidence to show that the management officials were motivated by a discriminatory intent, or that Complainant was subjected to unwelcome conduct based on her membership in a protected class. The Agency concluded that Complainant failed to prove that she was subjected to discrimination or harassment as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant argues that Agency officials lied, such as when the appeals training was scheduled. Complainant asserts that she had surgery and was out of the office for three months, and management officials kept appeals cases work on her schedule, despite not receiving the training. Complainant states that she began working from home in May 2013, and she was informed that she could no longer participate in the wellness/fitness program and that the Agency’s stated reason for the denial is “made up.” Complainant notes that the Agency allowed her to participate in the wellness program in 2018, after she filed a complaint. 2020004317 4 Complainant also argues that the Agency retaliated against her when it terminated her on May 29, 2020, and that the Agency wanted her to travel, despite her medical restriction. Complainant requests $500,000.00 for retaliation and discrimination. Agency’s Contentions The Agency argues that Complainant provided no evidence in her appeal statement to support discrimination based on race, age, sex, or disability under a disparate treatment theory, nor in support of her allegations of reprisal or a hostile work environment. The Agency notes that, even assuming that Complainant established a prima facie case of disparate treatment, she did not present any evidence to show that the Agency’s legitimate nondiscriminatory reasons were pretexts for discrimination. The Agency also asserts that Complainant did not attempt to establish a prima facie case of retaliation, and that she offered no evidence on appeal to prove that the alleged conduct was sufficiently severe or pervasive to alter the condition of her employment and create an abusive working environment. The Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS 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”). Claims As an initial matter, Complainant seems to raise new claims regarding her termination and alleged violation of medical restrictions. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, the new claims will not be included in this decision. Should she wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. In addition, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110, at Chap. 9, § IV.A.3. On appeal, Complainant only challenged the Agency’s decisions for claims 3 and 4; as such, we will not address claims 1 or 2 in the instant decision. 2020004317 5 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). 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 Affairs, 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. Affairs 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 age, color, disability, race, and sex, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 3, SEMS stated that Complainant’s request to attend the fitness program was denied because, at the time, the Agency’s policy limited the program to onsite staff, and teleworkers were not allowed to participate. ROI 1 at 92. Regarding claim 4, SEMS stated that their records showed that Complainant was on the roster for the appeals training and she was not aware that Complainant did not attend because she did not tell SEMS that she would be out of the office; however, when they realized that Complainant was not fully trained, they removed the appeals cases. ROI 2 at 70-1. SPS corroborated that, once they confirmed Complainant’s absence from the training, she immediately took Complainant off appeals. ROI 2 at 75. Complainant’s third-line supervisor verified that, when Complainant contacted him to complain of the issue on August 2, 2018,2 he investigated the matter and learned that SPS removed appeals cases from Complainant’s schedule two weeks earlier. ROI 2 at 81. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2 While Complainant alleged that she was assigned appeals since December 2017, the record shows that she did not raise the issue with her supervisors until March 2018. ROI 2 at 170-89. 2020004317 6 On appeal, Complainant argues that the proffered reason for the denial of her ability to participate in the Agency’s fitness program was “made up”; and that management officials kept appeals work on her schedule. However, Complainant provided no evidence to support her assertions. While Complainant argues that management officials lied, we note that Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Here, Complainant did not prove that the management officials’ responses were not true, and her bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, color, disability, race, or sex, or in reprisal for prior protected EEO activity, for claims 3 or 4. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases for claims 3 or 4. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment for claims 3 or 4 based on her age, color, disability, race, or sex, or in reprisal for prior protected EEO activity. 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 that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age, color, disability, race, or sex, or in reprisal for prior protected EEO activity. 2020004317 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2020004317 8 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 22, 2021 Date
