Alesia P.,1 Complainant,v.Elizabeth Jones, Director, Executive Office of the President (Office of Administration), Agency.

Equal Employment Opportunity Commission

Mar 21, 2019

0120170875 (E.E.O.C. Mar. 21, 2019)

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

Alesia P.,1
Complainant,

v.

Elizabeth Jones,
Director,
Executive Office of the President
(Office of Administration),
Agency.

Appeal No. 0120170875

Agency No. OA-15-02

DECISION

On January 5, 2017, 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,
final decision received on December 6, 2016, 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., 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.

ISSUE PRESENTED

In the instant appeal, we examine whether the final agency decision (FAD) properly found that
Complainant did not establish that she was discriminated against or subjected to harassment based
on sex, age, and reprisal for prior EEO activity in connection with numerous allegations and
interactions with her managers which formed the basis of her hostile work environment claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Personnel Security
Program Manager in the Agency’s Personnel Security Division (PSD) in Washington, DC.

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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The Agency’s FAD thoroughly discussed the facts in the record, and the instant decision
incorporates them as stated. On March 29, 2015, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of sex, age (55) and reprisal for prior
protected EEO activity under Title VII as evidenced by 17 separate incidents (including multi-part
allegations) to include: placement on administrative leave, inaccurate reporting of other
employee’s job performance, assigning detailed employees to her division, posting of the position
for which Complainant was performing, reassignment of duties, and others.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, in addition to contesting the findings in the Agency’s FAD, Complainant, among other
things, reiterates her contentions that it was impossible for her complaint to be processed fairly
due to the continued involvement of senior-level officials, even though her complaint was against
the head of the Agency and the General Counsel.

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, at Chapter 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”).

ANALYSIS AND FINDINGS

At the outset, the Commission notes that it accepts and concurs with the Agency’s response in the
FAD regarding Complainant’s allegations surrounding the unfair processing of the instant
complaint. Complainant requested a hearing, but subsequently withdrew the request. The hearing
phase was the most optimal time for Complainant to address any concerns she had with the
underlying investigation. Additionally, Complainant provides no evidence to discredit the
Agency’s assertion that an outside law firm was retained to perform the investigation, and that an
independent contractor was asked to prepare the final agency decision on the complaint. We find
no evidence that the General Counsel’s participation in this complaint was anything more than that
as an essential witness.
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Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII or ADEA case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially
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). Proof of a prima facie case will vary depending on the facts
of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by
a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502,
519 (1993).

Assuming, arguendo, Complainant established prima facie cases of discrimination based on age,
sex and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate,
non-discriminatory reasons for the incidents Complainant cites to establish her claim, and that
Complainant did not demonstrate that any conduct on the part of the Agency was based on
discriminatory animus. A review of the record supports the Agency’s finding in the FAD that
several of the alleged incidents did not occur as perceived and articulated by Complainant in her
complaint.

The record reflects that management made the decision to place Complainant on administrative
leave after continued concerns about her performance as a supervisor. Complainant was accused
of having excessive delays in completing certain tasks which left the White House Complex at risk
by allowing certain security risks to persist. While Complainant contends that her placement on
administrative leave was inconsistent with the way similar cases had been handled in the past, the
record shows that other employees outside Complainant’s protected category had been treated
similarly in similar circumstances.

The circumstances Complainant cites to establish her claim of unlawful discrimination do not
support the narrative that she was treated unfavorably because of any protected basis. For example,
with respect to audit report, we find no persuasive evidence that the General Counsel’s refusal to
sign was based on Complainant’s protected categories and not his concerns about its accuracy.

Complainant also took issue with another employee’s detail assignment under the premise that the
employee was not equipped to serve in a director position, and that she was not assigned to the
position for discriminatory reasons. The record, however, indicates that there were backlogs in
case adjudication that Complainant had been given the opportunity, but failed, to correct.
Subsequently, management made the decision to assign another employee to address the backlog.
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Complainant made a series of allegations accusing the General Counsel of attempting to remove
women from senior attorney positions. The record, however, is void of any persuasive evidence in
support of this allegation. Many of the female employees Complainant cites in support of her
claim were already planning to move to other offices for a variety of reasons, none of which
involved the General Counsel. Similarly, we note Complainant’s argument that the weekly
meetings that were held were somehow motivated by discriminatory animus. We find that this
contention lacked evidentiary support. The record indicates that these meetings were suggested to
work around the problems Complainant was having working with the General Counsel. The record
also indicates that the meetings were not mandatory, and Complainant could have declined to
participate.

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s performance and conduct in the workplace. The issues complained of here reflect
simple differences in opinion about organizational structure, management style, efficiency of
existing procedures, and candid observations about individual work products. Nothing in the
record, or submitted on appeal by Complainant, demonstrate that the actions were in any way
motivated by discriminatory animus. The Commission has long held that an Agency has broad
discretion to set policies and carry out personnel decisions and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No.
05940906 (January 16, 1997).

Harassment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore
Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working
environment exists “when the workplace is permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”
Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No.
05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10,
1996).

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An alteration to an employee’s working conditions exists if a tangible, discrete employment action
is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency’s actions were
sufficiently severe and/or pervasive to create a hostile work environment. The harasser’s conduct
is evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

The Agency concluded that Complainant failed to establish a claim of harassment because she
failed to show that that she was subjected to severe or pervasive treatment such as to create an
unlawful work environment on any basis. Instead, the incidents complained of here appear to have
been reasonable actions of Complainant’s supervisor and other management officials taken in the
course of discharging their supervisory responsibilities. We agree that the incidents identified
were simple differences of opinion about organizational structure, management philosophy, and
whether or not existing procedures needed revising. We agree with the Agency’s findings in the
FAD that the incidents, considered together and taken as a whole, do not rise to the level of a
discriminatorily hostile workplace.
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 (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.
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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.
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

March 21, 2019
Date