U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hana D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021005007 Agency No. HS-FEMA-00868-2020 DECISION On September 12, 2021, 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 August 11, 2021, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Quality Control (QC) Specialist, GS-0089-12 at the Agency’s Individual Household Programs Delivery Branch in Denton, Texas. Complainant is a black African-American female. She had engaged in prior EEO activity when she reported being subjected to a hostile work environment to the Agency’s Office of Inspector General (OIG). Complainant’s first-line supervisor was the Supervisory Program Specialist (Supervisor 1A). Complainant was then temporarily reassigned and her first-line supervisor became the Supervisory Program Specialist, Specialized Processing Unit (Supervisor 1B). Complainant’s second-line supervisor was the Unit Chief, Operations 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. 2 2021005007 Support (Supervisor 2). Complainant’s third-line supervisor was the Chief, Applicant Service Section (APS [Supervisor 3]). Complainant stated that she was temporarily reassigned to the Specialized Processing Unit (SPU) on October 16, 2019, and permanently reassigned from her supervisory position in the QC to a supervisory position in the SPU on February 11, 2020. She stated that Supervisor 2, Supervisor 3 and the Labor Employee Relations Specialist (LERS) reassigned her to the SPU because they claimed that the QC management staff, which included Complainant, had been accused of creating a hostile work environment. Complainant confirmed that she and two coworkers were reassigned to different units. According to Complainant, the reassignment was retaliatory for her report to the OIG. ROI at 125-27. According to Supervisor 3, Complainant and the two other employees were reassigned so that a thorough investigation could be conducted into the allegations that Complainant bullied staff, and that the relationship among management was causing great concern among staff. Supervisor 3 stated that the action was taken in order to eliminate the disruption within the workplace and was equitable to all employees named. ROI at 565-66. Supervisor 1A confirmed that he was also reassigned for the duration of the inquiry. According to Supervisor 1A, he was ultimately converted to a Supervisory Program Specialist within the Caller Services and Casework unit. ROI at 517. According to Complainant, Supervisor 1B denied her request for annual leave on January 21, 2020, due to a lack of staff coverage. Complainant stated that she informed Supervisor 1B that she wanted to take annual leave due to the inclement weather. ROI at 123-24. Supervisor 1B explained that there was inclement weather on January 21, 2020; and that Complainant called in, requesting annual leave for the day due to the weather. According to Supervisor 1B, she informed Complainant that Complainant had the option to use Direct Work Location (DWL), instead of taking annual leave, due to the inclement weather. Supervisor 1B noted that this was prior to Complainant receiving telework authorization. She stated that Complainant questioned how she was allowed to work from home without the telework approval. According to Supervisor 1B, she explained to Complainant that DWL and telework were two separate programs. She stated that Complainant elected to use DWL for the day. ROI at 504-05. Complainant stated that Supervisor 2 pressured her to apply for a detail with the Resources Management Workforce Unit (RMU) Group on January 31, 2019 and again around September 23, 2019. According to Complainant, Supervisor 2 told her that she was doing great and wanted her to help the RMU Group. Complainant asserted that Supervisor 2 also told her that if Complainant wanted the detail, it was hers. Complainant asserted that she did not seek out a detail or another assignment and felt pressured because Supervisor 2 asked her about the detail opportunity approximately three times. Complainant contended that Supervisor 2 had a hidden agenda and wanted Complainant to leave the QC Group so that Supervisor 2 could replace staff with those she preferred. Complainant stated that she declined the opportunity. ROI at 109-10. 3 2021005007 According to Supervisor 2, Complainant had expressed concerns over the accuracy of the reports generated by the Reports Group. Supervisor 2 explained that she had oversight of the QC Group, RMU Group, and the Reports Group and asked Complainant to consider taking a detail to the Reports Group to help her unravel and determine what was wrong with the reports. Supervisor 2 noted that Complainant was a very smart lady; and that Complainant believed the formula used to determine the calculations was incorrect. According to Supervisor 2, she believed that Complainant could help her discover what was wrong. Supervisor 2 stated that she considered Complainant a great asset and asked her to consider a detail on several occasions, but Complainant did not appear interested, so Supervisor 2 stopped asking about the detail. Supervisor 2 stated that Complainant did not indicate she felt pressured by Supervisor 2’s offers of the detail opportunity. ROI at 544-45. Complainant stated that during a staff meeting on July 17, 2019, she asked a question. According to Complainant, Supervisor 1A snapped at her and told her, “not today,” and that he would deal with her after the meeting. Complainant stated that she did not know why Supervisor 1A appeared frustrated but acknowledged that he had yelled at and snapped at other staff when they asked questions. Complainant also asserted that she reported Supervisor 1A’s behavior to Supervisor 2 but that Supervisor 2 did not take any action in response. ROI at 113-14. According to Supervisor 1A, Complainant interrupted him during the staff meeting, questioned him, and attempted to undermine his authority. Supervisor 1A stated that he sternly replied, “not now” and stated they could speak after the meeting. Supervisor 1A asserted that Complainant later reported that he yelled at her and that a management inquiry was conducted into her allegations. ROI at 515-16. Supervisor 2 confirmed that Complainant reported the matter to her, asserting that she initiated a fact-finding inquiry in response to Complainant’s concerns. According to Supervisor 2, the inquiry findings indicated that Supervisor 1A did not yell at Complainant but did raise his hand and firmly told her to stop; and that he would address the matter after the meeting. Supervisor 2 noted that Supervisor 1A reported that Complainant had interrupted him and had done so on many occasions. Supervisor 2 stated that multiple meeting attendees confirmed that Complainant interrupted Supervisor 1A. She explained that the inquiry led to concerns of a hostile work environment resulting from the interactions of the management team. ROI at 547-48. Supervisor 3 provided supporting statements, confirming that a management inquiry did not substantiate Complainant’s allegations. Supervisor 3 also reassigned three managers, including Complainant as a result of the inquiry findings. ROI at 562. According to Complainant, on October 2, 2019, Supervisor 1A and the Inquiry Office abruptly approached her and rudely told her to go to an interview. She stated that Supervisor 2 told her that she might have to interview, not that it was required to do so, nor when the interview would take place. Complainant asserted that being told she had to interview “now” was intimidating and uncomfortable. She added that having Supervisor 1A tell her that she needed to participate in the management inquiry interview was retaliatory as she had raised the allegations against him. 4 2021005007 Complainant added that when she informed the Inquiry Office that she wanted to seek counsel before interviewing, he pressured her to continue with the interview because he could not otherwise complete the inquiry without her participation. Complainant stated that later that day, Supervisor 2 emailed her and accused her of not cooperating; and that Supervisor 2 informed her that she had to report for the interview the next morning or she would be subject to discipline. According to Complainant, she contacted the LERS; and that the LERS and Supervisor 2 emailed her and noted there had been a misunderstanding. ROI at 115-16. Supervisor 1A denied any involvement in the alleged incident, asserting that Supervisor 2 reached out to Complainant. ROI at 516. According to Supervisor 2, she instructed Complainant to participate in an interview regarding her reported concerns after Supervisor 2 was informed that Complainant was not cooperating. Supervisor 2 asserted that Complainant responded in anger; and that in response, Supervisor 2 reassured Complainant that it was not her intention to make Complainant feel uncomfortable. Supervisor 2 stated that Complainant subsequently participated in the interview. She denied subjecting Complainant to harassment. ROI at 548-49. Supervisor 3 provided supporting statements. ROI at 562-63. The LERS also provided supporting statements, asserting that Complainant reported she was not given sufficient time to prepare for the interview. The LERS noted that he did not have the authority to grant additional time without coordinating with management. According to the LERS, Complainant also seemed to misunderstand the role and authority of the Inquiry Officer and her need to participate. ROI at 525-26. Complainant stated that on October 21, 2019, after her assignment to the SPU, she was told she could not telework until she got a team. According to Complainant, she was not authorized to telework once she received a team on November 4, 2019. Complainant stated that during her progress review on January 29, 2020, Supervisor 1B informed her of the policy that staff new to the SPU had to wait 90 days before they could telework; and that Complainant needed to submit new telework forms. Complainant stated that she received approval to telework after submitting the updated forms. ROI at 118-19. Complainant asserted that the Supervisory Emergency Management Specialist (SEMS), the other transferred employee, received more favorable treatment due to her race and color (White). ROI at 121. Supervisor 1B stated that Complainant transferred to the SPU on October 20, 2019, and the Unit Chief over the SPU did not allow new supervisors to telework until they had worked within the unit for 90 days. According to Supervisor 1B, this allowed the Unit Chief to determine the new supervisors’ knowledge level and allowed the new supervisor to become acquainted with the unit. Supervisor 1B stated that she did not know whether Complainant had a telework agreement prior to her arrival with their unit or of other reasons beyond the 90-day policy that she was told Complainant could not telework. Supervisor 1B noted that Complainant was granted telework in January 2020. ROI at 500-01. The SPU’s Unit Chief provided supporting statements, asserting that Complainant and the other employee were transferred to the SPU pending the completion of the management inquiry into the 5 2021005007 allegations of a hostile work environment. According to him, they required training to learn their roles and he made the decision that they had to report to work while they trained and became acclimated to their new duties. He also stated that once fully trained, he would allow them to telework. The SPU Unit Chief asserted that he granted a temporary exception to the SEMS to telework due to a family situation that required her to be close to home. She returned to working onsite once the situation changed. ROI at 534-35. The LERS confirmed these statements. ROI at 526. Complainant stated that on October 21, 2019, Supervisor 1B told her to log into the C3MP (undefined acronym) system daily and log out for lunches and breaks; and that the requirement applied to all staff. Complainant however asserted that the SEMS did not have to comply with the same requirement. ROI at 121-22. Supervisor 1B confirmed Complainant’s statements, explaining that the C3MP was their call system; and that Complainant had oversight of the agents that managed the incoming calls. According to Supervisor 1B, she did not supervise the SEMS and was unaware of what the SEMS supervisor required of her. ROI at 502-03. The SPU Unit Chief confirmed Supervisor 1B’s explanations, adding that if the SEMS was not required to comply with the daily log in requirements, then her first-line supervisor was at fault for not enforcing the requirement. ROI at 536. Upper management provided supporting statements. ROI at 564. Complainant initiated EEO contact on February 5, 2020. On May 19, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African- American), sex (female), color (Black), and reprisal for prior protected EEO activity (management inquiry) under Title VII of the Civil Rights Act of 1964 when: 1. In August and September 2019, Supervisor 2 pressured Complainant to apply for a detail in a department outside of the Quality Control group; 2. On or around August 30, 2019, Supervisor 1A publicly yelled at Complainant during a staff meeting; 3. On October 2, 2019, Complainant was abruptly and rudely asked to participate in a Management Inquiry interview and subsequently that same day, Complainant received an intimidating and threatening email from Supervisor 2 accusing her of refusing to participate in the interview; 4. On October 21, 2019, Complainant was told she could not Telework and on January 29, 2020, Complainant became aware that management had provided her with four different reasons why she could not Telework; 5. On October 21, 2019, Complainant was told to log into the C3MP system (undefined acronyms) daily and log out for lunches and breaks; 6 2021005007 6. On October 16, 2019, Complainant was temporarily reassigned to the Specialized Processing Unit and on February 11, 2020, Complainant was permanently reassigned from her supervisory position in the Quality Control Group to a supervisory position in the Specialized Processing Unit; and 7. On January 21, 2020, Complainant’s request for Annual Leave was denied.2 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 (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), on August 11, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In the FAD, the Agency analyzed Complainant’s disparate treatment allegations in claims 6 and 7 under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Agency determined that management articulated a legitimate, nondiscriminatory reason for reassigning Complainant as alleged in claim 6. The Agency noted Supervisor 3’s assertion that he contacted LER and directed that Complainant, Supervisor 1A, and a SEMS be administratively and physically separated until a management inquiry could be conducted into newly raised allegations and concerns about Complainant creating a hostile work environment. Supervisor 3 stated that Complainant and other two other employees were permanently reassigned once it was determined that the three supervisors (including Complainant) were deemed to be dysfunctional. ROI at 565-67. Supervisor 2 provided supporting statements, asserting that Complainant was reassigned based on the finding that employees feared for their jobs and were uncomfortable in their work environment. Supervisor 2 stated that all three supervisors were reassigned because they were not getting along and not working as a team. Supervisor 2 acknowledged that Complainant was unhappy with the reassignment but maintained that Complainant’s protected bases were not factors in management’s decisions. ROI at 553-55. Regarding claim 7, the Agency noted Supervisor 1B’s statement that she did not deny Complainant’s annual leave request and only provided her with information on available options, to include the ability to request to work from home through DWL. ROI at 504-05. 2 Pursuant to 29 C.F.R. § 1614.107(a)(1), the Agency procedurally dismissed an eighth claim for failure to state a claim. Specifically, in that claim, Complainant had alleged that her administrative grievance appeal was denied. The Commission has long held that a complainant cannot use the EEO complaint process to attack a proceeding in another forum. Therefore, we affirm the Agency’s procedural dismissal of Complainant’s eighth claim. 7 2021005007 The Agency observed that Complainant did not respond as to how her protected classes were factors in claim 7. ROI at 125. The Agency also noted record confirmation of Supervisor 1B’s statements. ROI at 411-12. The Agency found that Complainant failed to prove by a preponderance of the evidence that management’s legitimate, nondiscriminatory reasons for the challenged actions were pretext for discrimination. Nor did Complainant establish that management was motivated by discriminatory animus. The Agency also analyzed Complainant’s remaining claims under the legal standard for harassment and ultimately found that Complainant failed to demonstrate that the alleged examples of unwelcome conduct constituted unlawful harassment. According to the Agency, Complainant failed to produce preponderant evidence that the alleged incidents were motivated by her membership in a protected class. The Agency also noted that Complainant’s allegation failed to rise to the level of severity required to establish a hostile work environment. Regarding claim 1, the Agency noted Complainant assertion that the report she made to the OIG regarding performance management factored into the alleged incident. The Agency however observed that Complainant did not indicate whether she reported any concerns of discrimination or harassment to the OIG. The Agency also noted Complainant’s argument that her protected traits were factors with regard to promotional opportunities, but did not specify how they were related to the specific incident at issue. ROI at 113. The Agency also noted management and witness statements that the offer of a detail was not out of the ordinary. See ROI at 514 and 560-61. The Agency asserted that Complainant presented no evidence that she was pressured into accepting the detail; and she confirmed that she denied the opportunity. Regarding claim 2, the Agency noted Complainant’s argument that her sex and the OIG report were factors in Supervisor 1A’s behavior but offered no evidence in support of her claim. According to the Agency, Complainant did not specify how her protected traits were factors. ROI at 115. The Agency also observed that management took prompt action in response to concerns that Supervisor 1A yelled at Complainant by initiating a management inquiry but the inquiry did not substantiate Complainant’s claims. The Agency determined that Complainant failed to demonstrate that the incident occurred as alleged, or that it was based on her protected classes. Regarding claim 3, the Agency noted that Complainant acknowledged she did not know how her race and color were factors but stated that management wanted to get rid of her due to her sex and the OIG report. The Agency observed that Complainant did not elaborate nor offer evidence in support of her contentions. ROI at 118. 8 2021005007 Regarding claim 4, the Agency noted that Complainant did not specify how her sex or EEO activity were factors, only asserting that she received less favorable treatment than the SEMS. The Agency noted the requirement regarding new staff concerning telework, observing that Complainant presented no evidence to the contrary. Regarding claim 5, the Agency noted management’s statements that all staff were expected to log in, including the SEMS. According to the Agency, Complainant did not offer any evidence to support her contention that the SEMS did not log in as required, nor any evidence to support that her protected classes were factors in the incident at issue. The Agency found that based on the record, Complainant failed to demonstrate that management’s actions occurred as alleged or that those actions were based on her race, color, sex, or EEO activity. This appeal followed, and Complainant submitted an appeal statement in which she reiterates her allegations. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS Having reviewed the record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to disparate treatment in claims 6 and 7 or her reprisal allegations in those claims. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (Jun. 16, 2017). We find that many of the allegations stated in Complainant’s complaint fall within these types of management prerogatives, and Complainant has not shown how she was treated differently than others who were similarly situated and outside of her protected classes. We also find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to harassment with respect to claims 6 and 7 because her allegations were insufficiently severe or persuasive to rise to the level of a hostile work environment given the Agency articulated legitimate, nondiscriminatory reasons for the alleged actions in those claims. See Doe v. U.S. Postal Service, EEOC Appeal No. 0120130491 (Dec. 18, 2014) citing Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000) (A finding of hostile work environment is precluded where the complainant fails to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus). Likewise, the Agency correctly analyzed the facts and law regarding Complainant’s remaining harassment allegations in claims 1 through 5. For a hostile work environment claim to be actionable, the conduct must be more than merely offensive, it must exceed “casual comments, rude or derogatory remarks, and conduct motivated by personal animosity or personal feud” and the conduct must materially change the terms and conditions of employment. Sealey v. Affiliated Computer Servs., Inc., No. 11-cv-489, 2012, W.D.N.Y. (Mar. 6, 2012). 9 2021005007 The alleged incidents here are not sufficiently severe or pervasive to constitute discriminatory harassment. As we see no independent basis for finding in favor of Complainant, we AFFIRM the Agency’s final decision. 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. 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 10 2021005007 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 February 27, 2023 Date
