[Redacted], Betty T., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 2021Appeal No. 2020002760 (E.E.O.C. Mar. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Betty T.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2020002760 Hearing No. 440-2018-00342X Agency No. 63-2017-00230 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s January 30, 2020 final order concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Field Representative, GS-04, at its Field Division, Chicago Regional Office. On November 21, 2017, Complainant filed an EEO complaint alleging discrimination and harassment based on sex (female), age (over 40), disability, and in reprisal for prior EEO activity when: 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. 2020002760 2 1. On an ongoing basis, Agency officials failed to adequately address her concerns regarding treatment by survey respondents, coworkers, and management officials. Examples include: a. In or around February 2017, she advised her first level supervisor (S1), Field Supervisor, that a respondent commented to her about her panties. He provided no response, offered no suggestions, and did not remove her responsibilities pertaining to the respondent. b. In or around March 2017, she complained to S1 and her second level supervisor (S2), Survey Specialist, about calls and visits from other employees contacting respondents. Neither official responded, provided suggestions, or otherwise took corrective action. c. On or around April 25, 2017, she sent an e-mail to S1 outlining her concerns regarding co-workers re-interviewing survey respondents. S1 replied that he would forward her e-mail to survey officials, but she never received any response. d. In or around May 2017, she complained to S1 that the same respondent referenced in Claim 1a cursed at her and told her to not come back to his house or speak to his neighbors. S1 again provided no response, offered no suggestions, and refused to remove her responsibilities pertaining to the respondent. e. On or around June 4, 2017, she e-mailed S1 expressing frustration with her workload and difficulty traveling to cases assigned to her that were outside of her assigned area. She also advised that she felt bullied by his and S2’s constant unnecessary pressure. He did not respond to or address her concerns. f. On or around July 18, 2017, she reported to S1 that a respondent became angry with her, physically intimidated her, and instructed her to leave his property. S1 failed to respond or take corrective action and had failed to advise that the respondent had previously refused to cooperate with another Field Representative. g. On or around September 19, 2017, S1 failed to respond to her concerns that she was still being required to drive long distances on a consistent basis despite having informed him of her physical medical limitations. 2. On or about April 27, 2017, the Program Supervisor and the Regional Director issued her a "Five Day Letter" alleging her potential fraudulent reporting and requiring her to submit a written reply within five days, as a means to harass, intimidate, and retaliate against her. 3. On an ongoing basis, Agency officials made bullying, condescending, and dismissive comments to her. Examples include: 2020002760 3 a. On or around May 8, 2017, she told S1 that she felt bullied by the Five-Day Letter referenced in Claim 2, and he responded that it was a "bullying tactic," but offered no further comments or remedies. b. During a conference call on or around May 12, 2017, S2 repeatedly instructed Complainant to "calm down" in a condescending tone, dismissing her concerns and claiming that the letter she received, referenced in Claim 2, was not a Five-Day Letter. S2 and S1 also failed to provide her with requested policies, procedures, rights, and options pertaining to Five-Day Letters. c. When she reported to S1 on or around May 18, 2017, that long drives she was required to make for survey work were causing her pain and she was unable to keep up with her work due to her disabilities, he responded that she was required to work 70 hours for the first two weeks of May 2017. He added that cases she had not yet arranged an appointment for would be shared with coworkers for them to complete. He stated, "this is how [S2] wants it” and "it's not going to stop." d. On or around June 7, 2017, S1 sent three e-mails written in an "angry and/or demeaning tone" regarding concerns she raised to their team. S1 also instructed her to email him by close of business the next day explaining why she had attempted to make only one appointment with a survey respondent. e. Between April and July 2017, S1 made multiple inappropriate and strange comments to her via telephone and text message, including: calling her "selfish" when he engaged in an argument with her on June 5, 2017; stating he "needs to talk to field representatives [actually] working in the field"; mockingly saying he "feels so incompetent now, [he] may be psychologically damaged for life"; stating that he "feels sorry for them, like kids on the short bus"; stating "the word 'useless' comes to mind"; asking her "[d]id you call for a reason or just to vent?"; repeatedly yelling "[l]isten up! Listen up! Listen up!" in response to her concerns; and asking "[w]here else are you going to find a job making $17.00 per hour?" f. On or around September 18, 2017, when disputing whether she or another Field Representative was responsible for a case assignment, S1 told her "[w]ell, one of you have to take the [Type] A." g. On or around September 28, 2017, she complained to S1 that it was unfair she was being held responsible for survey goals of two other Field Representatives, to which he responded, "[t]hat is the way it is." He further stated, "[t]hey will just say you had enough time to work on it." When she replied that he could hold another Field Representative responsible, he responded, "[s]o, you just want me to charge her? ... [y]ou want me to call her on annual leave to ask her? ... [t]he [Type] A's may have been charged already." He then sent her an e-mail summarizing their conversation "in order to create a paper trail." 2020002760 4 4. After the May 12, 2017 conference call referenced in Claim 3b, S1 instructed her which programs to work on, what days and times to do so, and asked her to provide her work plan for each week via e-mail. He did not compel other Field Representatives to provide the same information. 5. In or around May 2017, S1 reduced her workload and gave copies of her cases to a coworker; despite the fact that Complainant had met or exceeded her goals and the coworker had not completed her own cases. S1 did not similarly provide Complainant with copies of any of the coworker's cases. 6. She was denied reasonable accommodation, as detailed in Claims 1e, 1g, and 3c, above. Complainant does not challenge the framing of the claims. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency indicated that Complainant failed to provide required medical documentation to support her accommodation request (regarding driving distances). Regarding her harassment claim, considering all the events, Complainant failed to show that it was related to any protected basis of discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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 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. 2020002760 5 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020002760 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 29, 2021 Date Copy with citationCopy as parenthetical citation