Sulema B.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120172681 (E.E.O.C. Dec. 14, 2018)

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

Sulema B.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.

Appeal No. 0120172681

Agency No. USM-2014-00592

DECISION

On July 31, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 26, 2017 final decision 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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as an Operations Support
Specialist at the Agency’s Southern District of Mississippi, District 43, in Gulfport, Mississippi.

On June 24, 2014, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (Caucasian) when:

1. her 40-hour Special Act Time Off award submitted by her supervisor was
subsequently reduced to 16 hours by the Administrative Officer; and

2. in 2013 and 2014, she was subjected harassment/hostile work environment.

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.
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After the investigation of the claims, 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 on June 26, 2017,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment: Claim 1

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 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, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

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, nondiscriminatory 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).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

Since November 2006, Complainant had worked for the Agency as an Operations Support
Specialist. Complainant was responsible for handling the paperwork for the Criminal Operations
in the Gulfport and Hattiesburg, Mississippi area. During the relevant period, Complainant had
two first-line supervisors: one supervisor is onsite and the other one is offsite. Complainant’s
onsite supervisor was the Supervisory Deputy Marshal Supervisor (“Deputy”), while her offsite
supervisor was the Administrative Officer.

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Complainant explained that while the Deputy would supervise her day-to-day work, the
Administrative Officer would complete her performance evaluations and oversee other
administrative processes related to her work employment. Complainant stated that she interacted
with her onsite supervisor more frequently than the offsite supervisor.

The record reflects there was tension between the onsite and offsite supervisors. The Deputy
contended that communication between her, the Administrative Officer and Complainant was
“problematic.” According to Complainant, she claimed her interactions with the Deputy was
strained “over the years” because the Administrative Officer would routinely resist offering or
approving her opportunities for training or assignments.

The Chief Deputy Marshal was Complainant’s second line supervisor and the U.S. Marshal was
her third line supervisor.

Complainant asserted that management reduced her Special Act Time Off award from 40 to 16
hours.

The Deputy (Caucasian) stated that during the relevant period she worked in the Gulfport office.
The Deputy stated that Complainant had been doing the Jackson criminal clerk’s work for
approximately one year because she had been on extended medical leave. The Deputy stated at
that time, Complainant started doing the criminal clerk’s work while she was in Puerto Rico to
work on an assignment for which she had requested and “so, [Complainant] started doing the work
remotely from Puerto Rico…[Complainant] being [a] responsible employee, caring employee,
wanted to help the Jackson office. So, little by little she was being asked more and more. Long
story short, that was two Januaries ago…so last December, after I’d watched her for a year do an
extraordinary job at managing this office and that office remotely.”

The Deputy stated that she then asked the Chief Deputy Marshal and Administrative Officer if
they would support her if she, the Deputy, recommended Complainant in for a time off award.
The Deputy stated that while the Chief stated that he would support her, the Administrative Officer
never responded to her.

The Deputy explained after she nominated Complainant for a 40-hour time off award in January
2014, she did not receive a response from the Jackson office for a while. She then began writing
emails requesting a status update in February 2014. The Deputy stated that on March 4, 2014, the
Administrative Officer informed her that a time-off award was approved but was being reduced to
16 hours. The Deputy stated that because the Administrative Officer would not provide an
explanation for the reduction, she asked the U.S. Marshal in private for an explanation.

The Deputy stated that the U.S. Marshal told her that she was not Complainant’s supervisor and
that it was the Administrative Officer’s decision and that he supported it. The Deputy stated that
she encouraged Complainant to file an EEO complaint concerning this matter.

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The Chief Deputy Marshal (Caucasian), also Complainant’s second line supervisor, stated that
during the relevant period, the Deputy was trying to get some recognition for the accomplishments
“of [Complainant], but there seemed to be no activity happening on that and so the supervisor
[Deputy] was sort of escalating the requests, trying to get some attention for the requests.” The
Chief stated that when he asked the Administrative Officer what the holdup for Complainant’s
award nomination, she “did not say yes or no, she just sort of let it die.”

The Chief Deputy Marshal explained that he was not given input into the award nomination, and
it was not presented to him for approval or disapproval. The Chief Deputy Marshal stated, “it was
unusual because I was the second level supervisor so I would usually have been the one to properly
have the oversight on it, but I didn’t.”

Further, the Chief Deputy Marshal stated that he disagreed with the U.S. Marshal and
Administrative Officer’s decision to reduce Complainant’s award and had a discussion with them
about the reduction. The Chief Deputy Marshal stated, “my position is that I should not have been
left out of this decision. The chain of command, which should have been followed, was not. In
Marshal Service, while you have a first level supervisor, there is a degree of deference that is
supposed to be given to the onsite supervisor [Deputy]. The person who is onsite, watching the
work product, should also be empowered and so holding to a ridged vision of the chain of
command when the first level supervisor is 200 miles away, is a novel application of the chain of
command.”

The U.S. Marshal (African-American), also Complainant’s third level supervisor, stated that he is
the approving official for awards. The Marshal stated that at the time Deputy recommended 40-
hour special award for Complainant, she should have talked with the Administrative Officer about
the recommendation but “it went back and forth…[Complainant] didn’t even contact her
supervisor that she had a problem with the award. If they had just communicated better – I don’t
think we’d be going through this right now. That’s my opinion.” The Marshal stated that he has
never received a nomination for a 40-hour special award for approval, but received a 16-hour
award which “I signed off on it.”

Further, the Marshal noted the Administrative Officer expressed concern with the Complainant’s
40-hour special award nomination. The Marshal stated that according to the Administrative
Officer, she stated that Complainant claimed she “played a part in assisting with the criminal clerk
duties in the Jackson Office that are at the GS-7 level. I don’t think any additional skills or
knowledge was required to perform the criminal clerk duties. Please remember that the duties she
performed were consistent with the duties she currently perform [sic], i.e., entering data in the
prisoner tracking system, requesting designations.”

Moreover, the Marshal contended that he allows the supervisors do their job and “I back them one
hundred percent on any decision they make and I’ve been doing that since I’ve been here. I’m
from the old school, so how it flows – chain of command…that’s my belief.”

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The Administrative Officer (African-American) stated, “it wasn’t that no one wanted to recognize
the fact that [Complainant] stepped in, because she did step in and she did help the District in the
criminal processing area. However, it was not a solo…it wasn’t a solo action. When I made the
decision to reduce it to sixteen hours – I was looking at the fact that what you were doing asked to
do was…I believe a Special Act Award is a one-time thing. It’s something that’s so significant
that it doesn’t happen on the recurring basis…I didn’t see where the volume necessitated extra
consideration.”

Further, the Administrative Officer stated after a review of the Agency’s award figures and noted
that the average award “was like, eight hours or sixteen hours. I did not see where forty hours was
the norm.” The Administrative Officer further stated that she reviewed the time period
Complainant “performed help – to the Jackson office. I looked at the fact that it wasn’t a solo
support and I just felt that two days was reasonable.”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory animus. It appears that different
management officials disagreed with each other concerning the value of Complainant’s voluntary
activities in helping the District in criminal processing. However, there is no evidence that this
internal disagreement among management officials was motivated in any way by Complainant’s
race.

Hostile Work Environment: Claim 2

With regard to Complainant’s hostile work environment claim, 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.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 her protected basis – in this case, her race. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself. Here, Complainant simply has provided no evidence to support her claim that her
treatment was the result of her race.

Complainant alleged that in 2013 and 2014, she was subjected harassment/hostile work
environment.

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The Deputy explained she was not sure if Complainant formally complained in writing to anyone
about her being subjected to harassment by the Administrative Officer, but that she had informed
the Chief, the Supervisory Deputy U.S. Marshal and several Deputies to advocate for Complainant.
The Deputy believed that the Administrative Officer “has disdain for” Complainant.

Further, the Deputy noted that the Administrative Officer has control issues and “she doesn’t want
anybody to have anything extra. She bucked me when I was pushing for [Complainant] to get
training. She has always tried to control and manipulate the people that she can control and
manipulate.”

The Chief acknowledged that there is “obvious historic animosity between [Complainant and
Administrative Officer] and I actually made the recommendation to realign the supervisory role
from [Administrative Officer] to [Deputy], which is on occasion done. The distance was one of
the reasons I recommended that; I felt the distance was a barrier. I really believed the solution was
to separate and shift this; the onsite supervisor should be the first level supervisor in this situation.”

The Marshal asserted that during the relevant period, Complainant never mentioned to him that
she was being subjected to harassment. Complainant asserted that the Chief made a written request
to the Marshal at least four separate occasion to change her supervisor from the Administrative
Officer to the Deputy but the Marshal denied the request. The Marshal asserted, however, that, “I
have never gotten anything in writing to change supervisors…never.”

The Administrative Officer denied subjecting Complainant to harassment. The Administrative
Officer acknowledged that her work relationship with Complainant was “not perfect, but I thought
we had a good relationship. Her assumption that her workplace is hostile…if it is hostile, I’m not
aware of it and I’m not contributing to it.”

It appears likely from the evidence that Complainant and the Administrative Officer had
relationship difficulties and communication problems, often spurred by the conflicts between the
onsite supervisor and the offsite Administrative Officer. However, based on the evidence
developed during the investigation, we conclude Complainant failed to establish an essential
element of her claim of harassment/hostile work environment – that her race played any role in the
incidents she alleged as part of her claim.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

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RECONSIDERATION (M0617)
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:
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.

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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 14, 2018
Date