Alesia P.,1 Complainant,v.Elizabeth Jones, Director, Executive Office of the President (Office of Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 21, 20190120170875 (E.E.O.C. Mar. 21, 2019) Copy Citation 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. 0120170875 2 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. 0120170875 3 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. 0120170875 4 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). 0120170875 5 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. 0120170875 6 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 Copy with citationCopy as parenthetical citation