[Redacted], Caitlyn H., 1 Complainant,v.Hugh Halpern, Director, United States Government Publishing Office, Agency.

Equal Employment Opportunity Commission

May 5, 2022

Appeal No. 2021001149 (E.E.O.C. May. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Caitlyn H.,1 Complainant, v. Hugh Halpern, Director, United States Government Publishing Office, Agency. Appeal No. 2021001149 Hearing No. 570-2018-01044X Agency No. GPO-17-26 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated November 5, 2020, finding no discrimination 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Billing Analyst, PG-12, at the Agency’s Plant Billing Branch of Finance in Washington, D.C. Complainant also served as the president of Local Chapter 2876 of the American Federation of Government Employees. On June 15, 2017, Complainant filed her complaint, which was later amended, alleging discrimination based on race (African American), sex (female), national origin (American), and in reprisal for prior EEO activity when: 1. On April 20, 2017, she was charge Absent Without Leave (AWOL). 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. 2021001149 2 a. On April 25, 2017, she was issued a GPO Form 2021 (Recommendation for Corrective Action) warning for a 45-day suspension; and b. On May 26, 2017, she was issued a GPO Form 2021 warning proposing removal by her supervisor (S1). 2. Ongoing, she was subjected to a hostile work environment harassment, including, but not limited to, the following alleged incidents: a. On April 20, 2017, and again on April 27, 2017, she was escorted off the premises when she attempted to meet with bargaining unit members because management deliberately cancelled the scheduled meeting; b. On April 20, 2017, when she arrived at the Laurel Warehouse for a meeting, she was approached by the manager (M1) in a loud and intimidating manner; c. On April 20, 2017, the Associate General Counsel-Labor Relations (LR) Manager forwarded an inappropriate email to employees and managers outside her chain of command stating that she would be carried on AWOL; d. On April 25, 2017, she was issued a GPO Form 2021, recommending a 45-day suspension for various charges; e. On April 25, 2017, the Director of Employee Relations deliberately and maliciously interfered and ordered S1 to issue her a GPO Form 2021, recommending a 45-day suspension, which was later rescinded and reissued on May 26, 2017, as a recommendation for removal; f. On April 28, 2017, she received an email from S1 requesting that she change the Official Time to AWOL for the four hours that she used to meet with bargaining unit members on April 20, 2017; g. On May 26, 2017, she was issued a GPO Form 2021 by S1 rescinding the previous GPO Form 2021 issued on April 25, 2017, and proposing a new increased penalty of removal; and h. On June 6, 2017, she received her quarterly evaluation which noted that she did not complete all of her monthlies on time as required by Goal #1 and she struggled with resolving and locating jackets as required by Goal #3. 3. On July 31, 2017, she received a proposed notice for removal from S1. 2021001149 3 After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request and requested a final Agency decision. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The record indicates that as a union president, Complainant worked with the LR Manager regarding union matters, including coordinating meetings and official times. Regarding claims 1 and 3f, S1 indicated that he charged Complainant four hours of AWOL for her leave without authorization on April 20, 2017. S1 stated that on April 20, 2017, Complainant notified him that she had a union meeting at the Laurel facility. However, he later was informed by the LR Manager that the meeting was cancelled and there was no meeting. S1 told Complainant to enter four hours of AWOL for her April 20, 2017 absence in her time sheet, but when she failed to do so, he reminded her on April 28, 2017. Regarding claim 3c, the LR Manager indicated that on April 18, 2017, Complainant, as a union president, emailed her indicating that she and a couple stewards would need to go to the Laurel facility on April 19, 2017, to meet with bargaining unit employees. The LR Manager responded that due to a short notice, Complainant might need to reschedule the meeting. On April 19, 2017, Complainant emailed the LR Manager that she, and other stewards, were planning to go to the Laurel facility on April 20, 2017. The LR Manager indicated that she called the Chief, Distribution & Service Outreach, at Laurel who told her that the Chief told Complainant that April 20th would not work with her employees at Laurel. The LR Manager stated that Complainant was required to obtain permission from Laurel’s management to meet with their employees and those employees were also required to get permission from their respective supervisors to meet with Complainant and/or union stewards. The LR Manager indicated that none of the Laurel employees, who were to meet with Complainant, requested official time from their supervisors and there was no meeting scheduled for April 20, 2017. Based on the foregoing, the LR Manager advised, via email, S1, and the supervisors of the stewards who went to the Laurel facility with Complainant, to charge Complainant, and the stewards, AWOL since there was no meeting scheduled on April 20, 2017, and no official time was granted for them to go to the Laurel facility, but they went anyway. The LR Manager copied her email to Complainant and the stewards involved in the incident at issue. Regarding claims 3a and 3b, M1 at Laurel facility indicated that at 10:30 - 11:00 am on April 20, 2017, Complainant and three union stewards came to his facility for a union meeting, and he called his LR officers about the situation. M1 told Complainant and the stewards that the meeting had been cancelled. When the stewards asked for a couple of bargaining unit employees, M1 told them he was not the employees’ supervisor and they needed to get approval from the employees’ supervisors directly. M1 stated that Complainant and the stewards were disrupting the workplace and all employees on the floor were witnessing the incident. M1 indicated that Complainant was loud and became agitated and said to him, “[she] was going to have all the affected employees go file an EEO complaint against [M1].” 2021001149 4 M1 also indicated that Steward #1 was loud, and Steward #1 “got so close” to M1, poked his phone he was holding, and told him that “[he] should be ashamed of [himself], and that [he] would be old one day too.” M1 stated that Complainant and the stewards left the work floor and assembled outside of the building and they met with employees out there. M1 stated that on April 27, 2017, there was a union meeting scheduled from 11:00 am to 12:00 noon or by 1:00 pm (which would include employees’ lunch hour, 12:00 - 12:45 pm, including extra 15 minutes) at his Laurel facility. Complainant and Steward #1, however, did not come to the facility until 12:05 pm. M1 informed them that the meeting must end at 1:00 pm as scheduled and employees needed to return to work. The Union personnel then said, stated M1, the meeting “starts when they arrive.” Considering the April 20, 2017 hostile interaction with Complainant and Steward #1 and their unwillingness to leave the facility, described above, M1 decided to call M1’s LR officer (not the LR Manager, described above) who approved to have uniformed Agency police officers as a safety precaution to remove Complainant and Steward #1 from the facility if necessary. At 1:20 pm, M1 and two police officers entered the workplace and told Complainant and Steward #1 that the meeting was over and requested them to leave the facility. Complainant and Steward #1 became disruptive and were upset. The police officers asked them to leave and they relocated to the cafeteria and they talked to the police officers for an additional 20 minutes. Complainant and Steward #1 departed from the facility around 1:50 pm and they were still talking on the other side of the door outside until about 2:15 pm. Regarding claims 2a, 3d, and 3e, S1 stated that he made a decision, not directed by the Director of Employee Relations as Complainant claimed, to issue Complainant a Form 2021 on April 25, 2017, recommending a 45-day suspension for her lack of candor, improper/inappropriate conduct, disturbance in the workplace, intentional misuse of government-owned or leased passenger vehicle, and AWOL which took place on April 20, 2017, while she was still under a Letter of Warning from a previous offense. The April 25, 2017 Form 2021 was rescinded, and a new Form 2021 was issued to Complainant on May 26, 2017, described in claim 2b, herein. Complainant acknowledged that other stewards involved in the incident at issue also received some forms of warnings as well. The record indicates that S1 did not supervise those stewards. Regarding claims 2b, 3g, and 4, S1 stated that after the issuance of the April 25, 2017 Form 2021, Complainant again took the exact same actions on April 27, 2017, she was warned not to do. Thus, stated S1, he, rescinded the April 25, 2017 Form 2021, and issued Complainant a new Form 2021 on May 26, 2017, recommending removal for her misuse of government vehicle, lack of candor, improper and/or inappropriate conduct, causing a disruption in the workplace, and AWOL. Although Complainant did not take a government vehicle as she did on April 20, 2017, Agency police officers were involved removing her from Laurel facility. On July 31, 2017, S1 issued Complainant a notice of proposed removal from her position as set forth in the May 26, 2017 Form 2021. On December 19, 2017, the Chief, Customer Services, Regional Agency Procurement Services, decided not to remove Complainant as proposed instead issuing her a 90- day suspension effective December 20, 2017. This matter is not at issue here. 2021001149 5 Regarding claim 3h, S1 indicated that Complainant received an “on track” in her quarterly review with notes on areas of needed improvement concerning her performance. As a supervisor, stated S1, he gave each of his staff a monthly assignment which had a list of jackets (assignments) that needed to be completed by the end of the month. If the employees did not complete them, S1 notified them via email of their incomplete assignment. Complainant acknowledged that her office had quarterly reviews of employees every quarter. Based on the foregoing, the Agency found that Complainant failed to show that its legitimate nondiscriminatory reasons for its actions were false and a pretext for discrimination. Complainant appeals from the Agency final decision. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). Disparate Treatment (Claims 1, 2 and 4) To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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. 2021001149 6 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered legitimate, nondiscrimination reasons for the alleged incidents. S1 indicated that Complainant was charged four hours of AWOL on April 20, 2017, because she was on leave without authorization. Complainant drove a government vehicle to meet with bargaining unit employees at the Laurel facility on April 20, 2017, when there was no meeting scheduled. S1 issued Complainant a Form 2021 on April 25, 2017, recommending a 45-day suspension for her lack of candor, improper/inappropriate conduct, disturbance in the workplace, intentional misuse of government-owned or leased passenger vehicle, and AWOL which took place on April 20, 2017. S1 subsequently rescinded the subject Form and issued Complainant a new Form 2021 on May 26, 2017, recommending her removal because she took the actions on April 27, 2017, of which she was warned not to take just a week before. Subsequently, on July 31, 2017, S1 issued Complainant a notice of proposed removal from her position at the Agency. However, on December 19, 2017, the Chief, Customer Services, decided not to remove Complainant as proposed instead issuing a lower disciplinary action, i.e., a 90-day suspension, which is not at issue here. Harassment (Claim 3) Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The LR Manager indicated that she worked with Complainant coordinating union meetings with bargaining unit employees. As a LR Manager, it was her duty to let S1 and other supervisors know of union meetings and Complainant’s (and union stewards’) official time use. M1 indicated that he was not loud and did not intimidate Complainant as alleged; rather it was 2021001149 7 Complainant who was loud and hostile toward him disrupting the workplace and refusing to leave the Laurel facility workplace on April 20 and 27, 2017. S1 denied harassing Complainant as alleged and as a supervisor, he gave Complainant her quarterly review. Complainant framed claim 3h as harassment, but even if we also treat this claim as a disparate treatment claim, we still find no discrimination. Complainant has not claimed or shown that the quarterly evaluations were not given to everyone, was unfair to her, or that others with similar performance were treated differently. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a pretext for discrimination. Regarding the discrete incidents, described in claims 1, 2, and 4, we find that Complainant failed to show that any of the actions were motivated by discrimination. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, described in claim 3, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021001149 8 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. 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. 2021001149 9 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 5, 2022 Date