Georgeann R.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency.

Equal Employment Opportunity Commission

May 6, 2020

2019004075 (E.E.O.C. May. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgeann R.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency. Appeal No. 2019004075 Hearing No. 410-2018-00172X Agency No. HS-FLETC-00174-2017 DECISION On June 18, 2019, 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 20, 2019, final order 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a GS-0301-15 Protocol and Communications Office Chief in the Agency’s Federal Law Enforcement Training Center (FLETC) Director's Office in Glynco, Georgia. On January 4, 2017, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of sex (female) when she was subjected to a hostile work environment, including when: 1. On September 10, 2016, the Deputy Director (S1) sent an email to Complainant’s supervisor (S2), criticizing her staff for not publishing a 9/11 message even though Complainant had been instructed by Agency Headquarters not to do so; 2. On September 13, 2016, S1 removed Complainant’s authority to approve conferences, an authority Complainant had for three years; 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. 2019004075 2 3. On September 16, 2016, S1 criticized Complainant and her staff because he was not informed of a visit by a U.S. Senator, even though the visit was scheduled and on the itinerary; 4. On September 19, 2016, S1 removed Complainant from speaking at a conference, although she had worked on the program for several months and was scheduled to deliver administrative remarks; 5. On September 20, 2016, Complainant was placed on administrative leave by S1 and was asked to relocate her office because of an Office of Professional Responsibility (OPR) investigation; 6. On September 20, 2016, Complainant’s computer was imaged without S2’s knowledge, in violation of policy; 7. On October 13, 2016, Complainant was relocated for the second time; 8. On October 13, 2016, Complainant was instructed to contact Employee/Labor Relations for a copy of her SF-50; 9. On August 22 or 23, 2016, S1 told someone in Complainant’s presence that she was at a conference to “babysit” S1; 10. On September 14, 2016, S1 failed to act when he was informed that another employee was attempting to solicit a grievance against Complainant; 11. On September 20, 2016, S1 requested that Complainant walk with him and instructed her to go to the OPR and “tell the truth”; 12. In 2016, S1 directed S2 to place a subordinate GS-14 employee in Complainant’s position as Acting Chief instead of the GS-15 Chief of Media Services; 13. In 2016, S1 told the FLETC Director (S3) that Complainant had two and a half years to retirement; and 14. In 2016, S1 complained to S3 that Complainant’s picture was on the wall of the FLETC photography studio. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on 2019004075 3 a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 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. 2019004075 4 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 May 6, 2020 Date