Romaine H.,1 Complainant,v.Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Johnson Space Center), Agency.

Equal Employment Opportunity Commission

Nov 2, 2016

0120142299 (E.E.O.C. Nov. 2, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Romaine H.,1
Complainant,

v.

Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Johnson Space Center),
Agency.

Appeal No. 0120142299

Agency No. NCN-12-JSC-00025

DECISION

The Commission accepts Complainant’s appeal from the December 2, 2013 final Agency
decision (FAD) 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.2 The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Aerospace
Engineer at the Agency’s Johnson Space Center in Houston, Texas. On December 20, 2011,
Complainant alleges that she learned that her supervisor (S1) had started a “negative
campaign” against her after they participated in a mediation to resolve a prior EEO complaint.

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.

2 Complainant initially filed an appeal (Complainant v. Nat’l Aeronautics and Space Admin.,
EEOC Appeal No. 0120131748) with the Commission after the Agency delayed issuing a FAD
following her request for one. The Commission remanded the matter for issuance of a FAD
within 30 days of the date of the decision. The Agency subsequently issued a FAD on
December 2, 2013, which Complainant claims she did not receive until March 12, 2014. The
Agency has raised no challenges to the timeliness of Complainant’s appeal.
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Complainant claims that she immediately requested that S1 “cease and desist” and for him to
take action to rectify the damage. S1 denied Complainant’s allegation and requested that they
talk in early January 2012. On February 2, 2012, Complainant contacted S1 again to try to
resolve the situation. Complainant contacted the EEO Office that same day. On February 7,
2012, S1 contacted the Human Resources (HR) Office and requested that they conduct an
independent investigation into Complainant’s allegations.

On February 7, 2012, an HR Representative (HR1) contacted Complainant and requested to
meet with her. Complainant informed HR1 that she had contacted the EEO Office and that she
did not want to meet with him out of fear that it would compromise her EEO complaint. HR1
informed Complainant that he saw these as two separate investigations. Complainant claims
that HR1 threatened to document her failure to meet with him. Complainant requested that
HR1 remove any reference to her failing to cooperate, but HR1 refused to do so. HR1
eventually met with Complainant and her attorney on February 26, 2012. During the meeting,
Complainant named two managers (M1 and M2) to whom she believed S1 made negative
comments. HR1 interviewed M1 and M2 and both denied that S1 made any negative
comments about Complainant.

On March 8, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment in reprisal for prior
protected EEO activity when, on February 7, 2012, her supervisor (S1) initiated a Human
Resources investigation into her allegations, which overlapped with her EEO counseling.3

At the conclusion of 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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that the alleged incidents were insufficiently
severe or pervasive to establish a hostile work environment. Further, the Agency found that
management had articulated legitimate, non-retaliatory reasons for its actions. Specifically, S1
denied Complainant’s allegations of a negative campaign. S1 attempted to resolve
Complainant’s concerns, but continued to receive correspondence that he believed was
accusatory and insulting. As a result, S1 sought assistance from HR to conduct an inquiry into
the validity of her allegations. HR conducted an investigation which determined that the
“negative campaign” was by all accounts a single statement by S1. The management officials

3 The Agency dismissed several additional matters pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. In addition, the Agency noted that Complainant attempted to amend
her complaint, but dismissed the claims for failure to state a claim, untimely EEO counselor
contact, and for raising matters previously addressed and settled in a settlement agreement.
Complainant raised no specific challenges to the dismissed claims on appeal; therefore, the
Commission will not address them in this decision.
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to whom S1 made allegedly negative comments did not construe them as negative; rather, more
a statement of fact: Complainant was performing two jobs and could not timely complete the
assigned tasks for both. HR1 found no evidence that this statement was intended to demean
Complainant’s professional reputation, and the management officials involved did not perceive
it as such. Additionally, S1 requested the inquiry to clear his name of the serious allegation
that was directed at him.

The Agency concluded that Complainant was not subjected to a hostile work environment or
reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant raises arguments related to prior complaints and the Agency’s missed
and manipulated deadlines. Additionally, Complainant claims that the report of investigation
contains inaccuracies and discrepancies. Further, Complainant contends that Agency officials
supplied erroneous facts during the entire process. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 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).

Therefore, 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. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her prior protected EEO activity, management subjected
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her to a hostile work environment based on several incidents where Agency officials took
actions that seemed adverse or disruptive to her. The Commission concludes that the conduct
alleged was insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that retaliatory animus played
a role in any of the Agency's actions. For example, S1 stated that in December 2011,
Complainant accused him of running a “negative campaign” against her. ROI, at 84. S1
denied this claim and unsuccessfully attempted to speak to her about her claims after the
holidays. Id. After Complainant raised the matter again in February 2012, S1 asked HR to
perform an independent investigation into the matter. Id. HR1 interviewed S1, and then
sought to interview Complainant regarding her allegations. Id. at 113. Complainant initially
resisted citing her pending EEO complaint, but met with HR1 with her attorney. Id.
Complainant provided the names of the managers to whom she believed S1 made the negative
comments. Id. HR1 spoke with the managers and they both corroborated S1’s statements that
he never said anything negative about Complainant. Id. HR1 confirmed that the only thing
they mentioned was that when Complainant was on a detail assignment to HQ, she performed
duties for two positions and sometimes did not have time to finish all the tasks for both
positions, which they both understood and did not consider negative. Id. at 113-14. Finally,
HR1 denied threatening to document Complainant’s failure to cooperate; rather, he simply
noted in an email summarizing their discussion that she failed to agree to meet with him. Id. at
114. After their meeting on February 27, 2012, HR1 sent Complainant an email confirming
their meeting and her cooperation. Id.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
explanation was a pretext for reprisal. As a result, the Commission finds that Complainant
was not subjected to reprisal or a hostile work environment as alleged.

CONCLUSION

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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

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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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
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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 2, 2016
Date